Buholtz v. USA

Filing 37

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 29 Report and Recommendations. It is accordingly ORDERED that Movant's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Cust ody (#1) pursuant to 28 U.S.C. § 2255 is DENIED and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. All motions by either party not previously ruled upon are DENIED. Signed by District Judge Marcia A. Crone on 3/26/2019. (daj, )

UNITED STATES DISTRICT COURT

KENNETH BUHOLTZ, #18875-078
versus
UNITED STATES OF AMERICA

EASTERN DISTRICT OF TEXAS

§
§
§
§
§

CIVIL ACTION NO. 4:15-CV-703
CRIMINAL ACTION NO. 4:11-CR-135(1)

ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate
Judge Kimberly C. Priest Johnson, who issued a Report and Recommendation (#29) concluding
that the Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed
pursuant to 28 U.S.C. § 2255 should be denied and dismissed with prejudice. Movant filed
objections (#36).
The Report of the Magistrate Judge, which contains proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration. Having
made a de novo review of the objections raised by Movant to the Report, the Court concludes that
the findings and conclusions of the Magistrate Judge are correct, and the objections of Movant are
without merit.
In Movant’s objections, he reurges the issues he raised originally, and for the first time,
raises a claim of newly discovered evidence that he claims would make a difference to his case.
Specifically, Movant provides a purported handwriting expert’s analysis on the handwriting found
in the victim’s diary, asserting portions of the diary were forged. The Court notes that the diary
was discussed in Movant’s Presentence Investigation Report; thus, any evidence concerning the
diary cannot be considered new evidence at this point. Moreover, Movant pleaded guilty to the
charge. He pleaded guilty pursuant to a Fed. R. Crim. P. 11(c)(1)(C) agreement, agreeing to a
prison term of one hundred twenty months, which was the statutory mandatory minimum. Finally,

claims raised for the first time in a reply or objections need not be considered by a court. See United
States v. Cervantes, 132 F.3d 1106, 1111 (5th Cir. 1998) (district court does not abuse its discretion
in refusing to consider new issues filed without leave of the court after the Government files its
Response).
It is accordingly ORDERED that Movant’s Motion to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (#1) pursuant to 28 U.S.C. § 2255 is DENIED and the
case is DISMISSED with prejudice. A certificate of appealability is DENIED. All motions by
.
either party not previously ruled upon are DENIED.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 26th day of March, 2019.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

2