Merrifield v. USA
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 23 MOTION for Summary Judgment filed by Jimmy Ray Earl Merrifield. It is recommended that the motion for summary judgment (docket entry #23) be denied. Signed by Magistrate Judge Don D. Bush on 7/2/2012. (kls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
JIMMY RAY EARL MERRIFIELD
UNITED STATES OF AMERICA
CIVIL ACTION NO. 4:05cv421
CRIM NO. 4:03cr84(11)
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Movant Jimmy Ray Earl Merrifield filed the above-styled and numbered motion to vacate,
set aside or correct his sentence pursuant to 28 U.S.C. § 2255. The cause of action was referred for
findings of fact, conclusions of law and recommendations for the disposition of the case.
Motion for Summary Judgment
Movant filed a motion for summary judgment (docket entry #23). A motion for summary
judgment is not a proper method of adjudicating a motion brought pursuant to 28 U.S.C. § 2255.
See Browder v. Director, Ill. Dept. of Correction, 434 U.S. 257, 269, n.14, 98 S. Ct. 556, 563, 54
L. Ed.2d 521 (1978); United States v. Hurley, 2005 WL 1473828 n.5 (N.D. Tex 2005) (Not Reported
in F. Supp.2d).
The Rules Governing Section 2255 Proceedings for the United States District
Courts do not contemplate such a motion. Although Rule 12 permits the Court to apply the Federal
Rules of Civil Procedure when appropriate, motions for summary judgment under Fed. R. Civ. P.
56 are not appropriate or necessary in the habeas context. This is especially true where the motion
seeks essentially the same relief as that sought in the underlying motion to vacate. For these reasons,
the Court should summarily deny the motion as improvidently filed in this action.
It is accordingly recommended that the motion for summary judgment (docket entry #23) be
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve
and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations
contained in this Report within fourteen days after being served with a copy shall bar that party from
de novo review by the district judge of those findings, conclusions and recommendations and, except
on grounds of plain error, from appellate review of unobjected-to factual findings and legal
conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto Ass'n, 79
F.3d 1415, 1430 (5th Cir. 1996) (en banc).
SIGNED this 2nd day of July, 2012.
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?