Mosher v. USA

Filing 17

ORDER OF DISMISSAL adopting Report and Recommendation for 16 . It is therefore ORDERED that the motion to vacate, set aside, or correct sentence is DENIED and the case is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. It is further ORDERED that all motions by either party not previously ruled on are hereby DENIED. Signed by District Judge Sean D. Jordan on 02/05/2024. (xl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JOSEPH PATRICK MOSHER,
#28225-078
v.
UNITED STATES OF AMERICA

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CIVIL NO. 4:20-CV-808-SDJ-AGD
CRIMINAL NO. 4:18-CR-218-SDJ-KJP

ORDER OF DISMISSAL
This civil action was referred to United States Magistrate Judge Christine A.
Nowak, who issued a Report and Recommendation (Dkt. #16) 1 with proposed findings
of fact and recommendations for the disposition of the case. The Report and
Recommendation of the Magistrate Judge has been presented for consideration. No
objections were filed.
Although no objections were filed, the Court notes that there are two
misstatements in the Report and Recommendation. The Report erroneously states,
in two different places, that the undersigned admonished Movant at his sentencing
hearing that appellate counsel would be appointed if he was determined to be
indigent. (Dkt. #16 at 12, 15). This is inaccurate. Rather, the undersigned
admonished Movant as follows: “If you are unable to pay the cost of an appeal, you
may apply for leave to appeal in forma pauperis, which is without payment of fees.

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referring to documents in the instant § 2255 civil action, the Court will simply cite to
the relevant docket number, i.e., (Dkt. #1). When referring to documents in the underlying criminal
case, the Court will cite to the document as Crim. ECF, followed by the docket number, i.e., Crim. ECF
(Dkt. #1).

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The clerk of the court will prepare and file a notice of appeal if you make the request.”
Crim. ECF (Dkt. #62 at 35).
Although the Report included the above-referenced misstatements concerning
the appointment of counsel on appeal, the misstatements do not change the ultimate
recommendation of the Magistrate Judge. Movant failed to show that Counsel’s
performance was deficient. Further, Movant failed to show that, but for Counsel’s
alleged deficient performance, the result of the proceeding would have been different.
The Court concludes that with the exception of the above-referenced
misstatements concerning the appointment of counsel on appeal, the findings and
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conclusions of the Magistrate Judge are correct. Accordingly, with the noted
corrections, the Court adopts the same as the findings and conclusions of the Court.
It is therefore ORDERED that the motion to vacate, set aside, or correct
sentence is DENIED and the case is DISMISSED WITH PREJUDICE. A
certificate of appealability is DENIED. It is further ORDERED that all motions by
either party not previously ruled on are hereby DENIED.
So ORDERED and SIGNED this 5th day of February, 2024.

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SEAN D. JORDAN
UNITED STATES DISTRICT JUDGE

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