Powell v. USA

Filing 7

ORDER adopting the magistrate judge's 5 Report and Recommendation. Signed by District Judge Ron Clark on 11/30/2017. (bjc)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION OTIS D. POWELL § VS. § 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. ORDER 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 2 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 3

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