Hayward v. USA

Filing 10

MEMORANDUM ORDER adopting the magistrate judge's 8 Report and Recommendation. Accordingly, a certificate of appealability will not be issued. Signed by Judge Thad Heartfield on 9/21/2017. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
JOSHUA JEROME HAYWARD

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 1:16-CV-380

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Movant, Joshua Jerome Hayward, a federal prisoner currently confined at the Federal
Correctional Institution in Mendota, California, proceeding pro se, filed this motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
The Court referred this matter to the Honorable Keith Giblin, United States Magistrate Judge,
at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this Court. The
Magistrate Judge recommends this motion to vacate, set aside, or correct sentence be dismissed
without prejudice for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b).
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, and pleadings. No objections
to the Report and Recommendation of United States Magistrate Judge have been filed to date.1
ORDER
Accordingly, the 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 in this case
in accordance with the Magistrate Judge’s recommendations.
Furthermore, the court is of the opinion movant is not entitled to a certificate of appealability.
An appeal from a judgment denying post-conviction collateral relief may not proceed unless a judge
issues a certificate of appealability. See 28 U.S.C. § 2253. The standard for a certificate of
appealability requires the movant to make a substantial showing of the denial of a federal
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Movant received a copy of the Report and Recommendation on July 10, 2017 (docket entry no. 9).

constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362
F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, the movant need not establish that
he would 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. See Slack, 529 U.S. at 483-84.
Any doubt regarding whether to grant a certificate of appealability should be resolved in favor of the
movant, and the severity of the penalty may be considered in making this determination. See Miller
v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
In this case, movant has not shown that the issue would be subject to debate among jurists
of reason. The questions presented are not worthy of encouragement to proceed further. Therefore,
the movant has failed to make a sufficient showing to merit the issuance of certificate of
appealability. Accordingly, a certificate of appealability will not be issued.
SIGNED this the 21 day of September, 2017.

____________________________
Thad Heartfield
United States District Judge

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