Lynch v. USA

Filing 5

ORDER adopting the 3 Report and Recommendation. Signed by District Judge Marcia A. Crone on 1/10/22. (kcv, )

Case 1:21-cv-00497-MAC-ZJH Document 5 Filed 01/10/22 Page 1 of 2 PageID #: 89

UNITED STATES DISTRICT COURT
DARREL RAY LYNCH,
Movant,
versus
UNITED STATES OF AMERICA,
Respondent.

EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:21-CV-497

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Movant Darrel Ray Lynch, a federal prisoner, proceeding pro se, brought 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 as barred by limitations.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings and all available evidence. No objections to
the Report and Recommendation of United States Magistrate Judge were filed by the parties.
Additionally, the 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

Case 1:21-cv-00497-MAC-ZJH Document 5 Filed 01/10/22 Page 2 of 2 PageID #: 90

encouragement to proceed further. See Slack, 529 U.S. at 483-84. 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.), cert. denied, 531 U.S. 849 (2000).
Here, the movant has not shown that any of the issues raised by his claims are subject to
debate among jurists of reason. The factual and legal questions advanced by the movant are not
novel and have been consistently resolved adversely to his position. In addition, the questions
presented are not worthy of encouragement to proceed further. Thus, the movant has failed to
make a sufficient showing to merit the issuance of a certificate of appealability. Therefore, a
certificate of appealability shall not be issued.
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 recommendation.
SIGNED at Beaumont, Texas, this 10th day of January, 2022.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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