Salvador Yanez Ruiz v. USA

Filing 3

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Second Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Salvador Yanez Ruiz. It is therefore recommended that the motion be dismissed without prejudice. Fed. R. Civ.Proc. 41(b); Rule 41, Local Rules for the Eastern District of Texas. Signed by Magistrate Judge Don D. Bush on 12/18/2012. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

SALVADOR YANEZ RUIZ, #35269-177

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 4:12cv697
CRIM. ACTION NO. 4:07cr42

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Movant Salvador Yanez Ruiz filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255, challenging constitutional violations concerning his Eastern District
of Texas, Sherman Division conviction in Case No. 4:07cr42. He asks that he be given permission
to file a successive § 2255 action. However, in his first motion filed pursuant to § 2255, Movant has
been granted an out-of-time appeal. See Cause No. 4:09cv172. Accordingly, this motion is moot,
and the case should be dismissed.
Recommendation
It is therefore recommended that the motion be dismissed without prejudice. Fed. R. Civ.
Proc. 41(b); Rule 41, Local Rules for the Eastern District of Texas.
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

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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 18th day of December, 2012.
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DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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