Shipp v. USA

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 9 Report and Recommendations. Signed by Judge Robert W. Schroeder, III on 6/18/2015. (sm, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION JIM BOB SHIPP § VS. § UNITED STATES OF AMERICA § CIVIL ACTION NO. 5:12cv123 MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Jim Bob Shipp, proceeding pro se, filed the above-styled motion to vacate, set aside or correct sentence. The Court referred the matter to the Honorable Caroline M. Craven, United States Magistrate Judge, for consideration pursuant to applicable orders of this Court. The magistrate judge has submitted a Report and Recommendation of United States Magistrate Judge concerning this case. The magistrate judge recommends the motion to vacate, set aside or correct sentence be denied. The Court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record and pleadings. No objections were filed to the Report and Recommendation. ORDER Accordingly, the proposed findings of fact and conclusions of law of the magistrate judge are correct and the report of the magistrate judge is ADOPTED. A final judgment will be entered denying this motion to vacate, set aside or correct sentence. In addition, the movant is not entitled to the issuance of a certificate of appealability. An appeal from a judgment denying federal habeas relief may not proceed unless a judge issues a certificate of appealability. See U.S.C. § 2253. The standard for granting a certificate of appealability requires a movant to make a substantial showing of the denial of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84; Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004). In making a substantial showing, the movant need not establish that he should prevail on the merits. Rather, he must demonstrate that the issues are subject to debate among jurists of reason, that a court could resolve the issues in a different manner, or that the . questions presented are worthy of encouragement to proceed further. Slacke, 529 U.S. at 483-84; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). Any doubt regarding whether to grant a certificate of appealability should be resolved in favor of the movant. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S. 849 (2000). In this case, the movant has not shown that any of the issues raised by his claims are subject to debate among jurists of reason. In addition, the questions presented are not worthy of encouragement to proceed further. As a result, a certificate of appealability shall not be issued. SIGNED this 18th day of June, 2015. ____________________________________ ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE

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