Flores-Escobedo v. USA
ORDER OVERRULING AND ADOPTING REPORT AND RECOMMENDATIONS for 2 Report and Recommendations. Signed by Judge Michael H. Schneider on 1/20/2015. (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
UNITED STATES OF AMERICA
CIVIL ACTION NO. 5:14cv34
ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Movant Santiago Flores-Escobedo, a federal prisoner, proceeding pro se, brought this Motion
to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.
The Court referred this matter to the Honorable Caroline M. Craven, United States Magistrate
Judge, at Texarkana, Texas, for consideration pursuant to applicable laws and orders of this Court.
The magistrate judge recommends the motion be denied and dismissed.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record and pleadings. Movant filed
objections to the Report and Recommendation. This requires a de novo review of the objections in
relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b).
After careful consideration, the Court concludes movant’s objections should be overruled.
In his objections, movant, for the first time, makes a conclusory assertion that counsel was
ineffective. Movant, however, has neither alleged nor demonstrated counsel’s performance was
deficient or affected the validity of the waiver or the plea. Further, petitioner has failed to allege or
demonstrate how he was prejudiced by counsel’s claimed deficient performance. A review of the
sentencing hearing transcript makes clear movant made an informed decision to plead guilty to the
charge of illegal re-entry which increased his guidelines range because he faced mandatory
deportation if he had pleaded guilty to a charge of possession of fraudulently obtained immigration
documents, which he admitted he had. Thus, he chose the option which provided him with an
opportunity to remain in the United States with his family. Further, contrary to movant’s assertion
otherwise, counsel did argue movant should receive a reduction for cultural assimilation. Thus,
movant’s objections are without merit and should be overruled.
Additionally, movant is not entitled to the issuance of a certificate of appealability. An
appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge issues
a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard for granting
a certificate of appealability, like that for granting a certificate of probable cause to appeal under
prior law, requires the movant to make a substantial showing of the denial of a federal constitutional
right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362 F.3d 323, 328
(5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that 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. See Slack, 529 U.S. at 483-84. Any doubt regarding whether to grant a certificate
of appealability is resolved in favor of the movant, and the severity of the penalty may be considered
in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied,
531 U.S. 849 (2000).
Here, movant has not shown that any of the issues raised by his claims are subject to debate
among jurists of reason. The factual and legal questions advanced by the movant are not novel and
have been consistently resolved adversely to his position. In addition, the questions presented are
not worthy of encouragement to proceed further. Therefore, movant has failed to make a sufficient
showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of
appealability shall not be issued.
Accordingly, movant’s objections are OVERRULED. The 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 in this case in accordance with the magistrate judge’s
It is SO ORDERED.
SIGNED this 20th day of January, 2015.
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE
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