Saaybe v. USA

Filing 13

ORDER OF DIMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 10 Report and Recommendations. ORDERED the motion to vacate, set aside, or correct sentence is DENIED and Movant's case is DISMISSED with prejudice. A certificate of appealability is DENIED. It is also ORDERED Movant's motion for the Court to accept his § 2255 motion out of time (Dkt. #3) is DENIED. Finally, it is ORDERED that all motions by either party not previously ruled on are hereby DENIED. Signed by Judge Amos L. Mazzant, III on 8/18/2017. (daj, )

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

ERIC SAAYBE, #22011-078
VS.
UNITED STATES OF AMERICA

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CIVIL ACTION NO. 4:16cv895
CRIMINAL ACTION NO. 4:12cr181(35)

ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate Judge
Christine A. Nowak, who issued a Report and Recommendation concluding that the motion to
vacate, set aside, or correct sentence should be denied and the case dismissed with prejudice.
Movant filed objections (Dkt. #12). The Report of the Magistrate Judge, which contains proposed
findings of fact and recommendations for the disposition of the case, has been presented for
consideration (Dkt. #10). The Report recommends dismissal because Movant failed to timely file
his § 2255 motion. In fact, Movant concedes the motion is barred by the statute of limitations as he
initially filed a motion to accept his motion out of time (Dkt. #3). After conducting a de novo review
of the objections raised by Movant to the Report, the Court concludes the objections are without
merit.
Movant does not object to the Report’s recommendation for dismissal based on his § 2255
motion being time-barred; rather, he objects to the recommendation that a certificate of appealability
be denied. Movant asserts that a certificate of appealability is not required when appealing the denial
of a Rule 60(b) motion. However, Movant did not file a Rule 60(b) motion pursuant to Fed. R. Civ.
P. 60(b) – he filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
Accordingly, Movant’s objections are inapplicable, and are without merit. Movant fails to make any
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further objections to the Report. Accordingly, he is barred, except upon grounds of plain error, from
appellate review of those proposed factual findings and legal conclusions that have been accepted
and adopted by the district court. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1430 (5th Cir.
1996) (en banc).
Having conducted a de novo review of Movant’s objections, the Court concludes that the
findings and conclusions of the Magistrate Judge are correct, and adopts the same as the findings and
conclusions of the Court. It is therefore
ORDERED the motion to vacate, set aside, or correct sentence is DENIED and Movant’s

. case is DISMISSED with prejudice. A certificate of appealability is DENIED. It is also
ORDERED Movant’s motion for the Court to accept his § 2255 motion out of time (Dkt.
#3) is DENIED. Finally, it is
ORDERED that all motions by either party not previously ruled on are hereby DENIED.

SIGNED this 18th day of August, 2017.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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