Powell v. USA
ORDER adopting the magistrate judge's 5 Report and Recommendation. Signed by District Judge Ron Clark on 11/30/2017. (bjc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
OTIS D. POWELL
UNITED STATES OF AMERICA
CIVIL ACTION NO. 1:17-CV-172
ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Movant Otis D. Powell, 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 recommends dismissing the motion without prejudice pursuant to Federal Rule
of Civil Procedure 41(a).
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and the pleadings. No objections to the Report and
Recommendation of United States Magistrate Judge were filed by the parties.
In this case, 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. 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. Slack, 529 U.S. at 484; 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).
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. Thus, movant has failed to make a sufficient showing
to merit the issuance of a certification of appealability.
Accordingly, the findings of fact and conclusions of law of the Magistrate Judge are correct,
and the report of the Magistrate Judge (document no. 5) is ADOPTED. A final judgment will be
entered in this case in accordance with the Magistrate Judge’s recommendation. A certificate of
appealability will not be issued.
So Ordered and Signed
Nov 30, 2017
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