Porter v. USA
MEMORANDUM ORDER OVERRULING MOVANT'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this motion to vacate, set aside or correct sentence should be dismissed without prejudice. Movant is not entitled to a certificate of appealability. Signed by Judge Marcia A. Crone on 2/8/17. (mrp, )
UNITED STATES DISTRICT COURT
UNITED STATES OF AMERICA,
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:16-CV-465
MEMORANDUM ORDER OVERRULING MOVANT’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Movant Ronelle Porter, a federal prisoner, 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 Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The magistrate judge has submitted a Report and Recommendation of United States Magistrate
Judge. The magistrate judge recommends dismissing the motion without prejudice.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings, and all available evidence. Movant filed
objections to the magistrate judge’s Report and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes
the objections are without merit. First, movant’s claim that he should be resentenced in light of
Amendment 794 to the Sentencing Guidelines is not cognizable in a § 2255 motion. Next, movant
erroneously claims that he did not waive his right to appeal guideline determinations in his plea
agreement. In fact, the record reflects that movant did not reserve his right to appeal guideline
Finally, even if movant had not waived his right to appeal guidelines
determinations, he is not entitled to relief. The plea agreement called for a stipulated sentence of
seventy months, which took into account the anticipated two-point reduction in the then-pending
amendments to the Sentencing Guidelines.
In addition, movant is not entitled to the issuance of a certificate of appealability. An
appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge issues
a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard for
granting a certificate of appealability, like that for granting a certificate of probable cause to appeal
under prior law, requires the movant to make a substantial showing of the denial of a federal
constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362
F.3d 323, 328 (5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making
that 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. See Slack, 529 U.S. at 483-84; Avila v. Quarterman, 560 F.3d
299, 304 (5th Cir. 2009). If the motion was denied on procedural grounds, the movant must show
that jurists of reason would find it debatable: (1) whether the motion raises a valid claim of the
denial of a constitutional right, and (2) whether the district court was correct in its procedural
ruling. Elizalde, 362 F.3d at 328. Any doubt regarding whether to grant a certificate of
appealability is 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. 2000).
Here, the movant has not shown that any of the issues raised by his claims are subject to
debate among jurists of reason, or that a procedural ruling is incorrect. In addition, 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 a certification of appealability.
Accordingly, movant’s objections (#4) are OVERRULED. The findings of fact and
conclusions of law of the magistrate judge are correct, and the report of the magistrate judge (#3)
is ADOPTED. A certificate of appealability will not be issued. A final judgment will be entered
in this case in accordance with the magistrate judge’s recommendation.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Sherman, Texas, this 8th day of February, 2017.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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