Perez v. USA

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATION for 20 Report and Recommendations. The above-styled Motion to Vacate, Set Aside or Correct Sentence is DISMISSED without prejudice. It is further ORDERED that the Final Judgment issued in United States v. J uan Hunerto Perez, Jr., Criminal Action No. 5:15cr12-1, is VACATED and that the Clerk of Court shall re-enter the Final Judgment as of the date of entry of the Final Judgment in this § 2255 proceeding. When the Judgment is re-entered it will begin a new time period for filing an appeal under FED. R. APP. P. 4(b). Signed by Judge Robert W. Schroeder, III on 8/23/2017. (slo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
JUAN HUNERTO PEREZ JR,
Plaintiff,
v.
USA,
Defendant.

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CIVIL ACTION NO. 5:16-CV-00037-RWS

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Movant Juan Hunerto Perez, Jr., a federal prisoner confined at the Federal Correctional
Institution in Texarkana, Texas, 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 for consideration pursuant to 28 U.S.C.
§636(b)(1) and (3). The Magistrate Judge has submitted a Report and Recommendation (“Report,”
Docket No. 20), and no objections have been filed.
In her Report, the Magistrate Judge recommends that Perez be allowed to file an out-oftime appeal and recommending that Perez’s motion to vacate, set aside or correct sentence should
be dismissed without prejudice. The Magistrate Judge also recommends that Final Judgment in
United States v. Perez, Criminal Action No. 5:15cr12, be vacated and re-entered as of the date of
entry of the Final Judgment in this proceeding.
The Court has received and considered the Report, along with the record, pleadings and all
available evidence. The Court agrees with the Magistrate Judge that Movant is entitled to relief

under Tapp in the form of an out-of-time appeal. Accordingly, the Court ADOPTS the Report of
the Magistrate Judge as the opinion of the Court. It is therefore

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ORDERED that the above-styled Motion to Vacate, Set Aside or Correct Sentence is

DISMISSED without prejudice. It is further
ORDERED that the Final Judgment issued in United States v. Juan Hunerto Perez, Jr.,
Criminal Action No. 5:15cr12-1, is VACATED and that the Clerk of Court shall re-enter the Final
Judgment as of the date of entry of the Final Judgment in this § 2255 proceeding. When the
Judgment is re-entered it will begin a new time period for filing an appeal under FED. R. APP. P.
4(b).
A final judgment will be entered in this case in accordance with this Order.
SIGNED this 23rd day of August, 2017.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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