Greninger v. USA

Filing 5

ORDER overruling objections and adopting 3 Report and Recommendation. A certificate of appealability will not be issued. Signed by Judge Thad Heartfield on 10/10/17. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
JAMES GREGORY GRENINGER

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 1:16cv379

ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Movant James Gregory Greninger, proceeding pro se, filed the above-styled motion to
vacate, set aside or correct sentence. The court referred the matter to the Honorable Keith F. Giblin,
United States Magistrate Judge, for consideration pursuant to applicable orders of this court.
The Magistrate Judge has submitted a Report and Recommendation of United States
Magistrate Judge concerning this case. The Magistrate Judge recommends the motion to vacate, set
aside or correct sentence be denied.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. Movant filed objections to the Report and
Recommendation.
The court has conducted a de novo review of the objections in relation to the applicable law.
After careful consideration, the court is of the opinion the objections are without merit.1
ORDER
Accordingly, the objections are OVERRULED. The proposed findings of fact and
conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is
ADOPTED. A final judgment will be entered denying this motion to vacate, set aside or correct
sentence.

1

In his objections, movant asserts his offense level was increased by two points based upon an erroneous
finding that he possessed a dangerous weapon. However, claims based upon misapplication of the United States
Sentencing Guidelines are not cognizable in a motion to vacate proceeding. United States v. Williamson, 183 F.3d
458, 462 (5th Cir. 1999).

In addition, the movant is not entitled to the issuance of a certificate of appealability. An
appeal from a judgment denying federal habeas relief may not proceed unless a judge issues a
certificate of appealability. See U.S.C. § 2253. The standard for granting a certificate of
appealability requires a movant to make a substantial showing of the denial of a federal
constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84; Elizalde v. Dretke, 362 F.3d 323,
328 (5th Cir. 2004). In making a substantial showing, the movant need not establish that he should
prevail on the merits. Rather, he must demonstrate that the issues are subject to debate among jurists
of reason, that a court could resolve the issues in a different manner, or that the questions presented
are worthy of encouragement to proceed further. Slacke, 529 U.S. at 483-84; Avila v. Quarterman,
560 F.3d 299, 304 (5th Cir. 2009). Any doubt regarding whether to grant a certificate of
appealability should be resolved in favor of the movant. See Miller v. Johnson, 200 F.3d 274, 28081 (5th Cir. 2000).
In this case, the movant has not shown that the issue of whether his motion to vacate is
meritorious is subject to debate among jurists of reason. In addition, the questions presented with
respect to this issue are not worthy of encouragement to proceed further. As a result, a certificate
of appealability shall not be issued.
SIGNED this the 10 day of October, 2017.

____________________________
Thad Heartfield
United States District Judge