Thurman v. USA

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATION for 7 Report and Recommendation. Signed by District Judge Robert W. Schroeder, III on 1/9/2018. (slo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
RODERICK TYRONE THURMAN,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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CIVIL ACTION NO. 5:16-CV-00105-RWS

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Movant Roderick Tyrone Thurman, a federal prisoner, proceeding pro se, filed 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 Court has received and considered the Report and Recommendation of United States
Magistrate Judge (Docket No. 7) along with the record, pleadings and all available evidence. The
Magistrate Judge recommends the motion to vacate, set aside or correct sentence should be
denied. The Magistrate Judge also recommends amending the sentencing hearing minutes to
reflect that Mr. Thurman’s objections to the Presentence Report were granted, and that he was
sentenced in accordance with Paragraph 75 of the Presentence Report.
No objections to the Report and Recommendation have been filed.1 Therefore, the Court

1

The Report and Recommendation was mailed to Mr. Thurman’s last known address on October 23, 2017.
Mr. Thurman is a pro se litigant, and, under the Local Rules of the Eastern District of Texas, pro se litigants must
provide the Court with a physical address and are responsible for keeping the clerk advised in writing of the
current address. Local Rule CV-11(d). To date, Mr. Thurman has not acknowledged receipt of the Report and
Recommendation. A member of the Court staff searched the Bureau of Prisons’ inmate locator, which reflects that
Mr. Thurman was released from custody on April 18, 2017. No forwarding address has been provided.

reviews the Magistrate Judge’s findings of fact and conclusions of law for plain error. Rodriguez
v. Bowen, 857 F.2d 276, 276–77 (5th Cir. 1988).
The Court agrees with the Magistrate Judge’ findings and conclusions. Mr. Thurman’s
sentence was not enhanced pursuant to the career offender provision of the United States
Sentencing Guidelines, and therefore, is not entitled to relief under Johnson v. United States,
135 S. Ct. 2551 (2015).

The Court further agrees that the sentencing minutes should be

amended.
Additionally, in this case, the 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; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). If the motion was denied on
procedural grounds, the movant must show that jurists of reason would find it debatable: (1)
whether the motion raises a valid claim of the denial of a constitutional right, and (2) whether the
district court was correct in its procedural ruling. Slack, 529 U.S. at 484; Elizalde, 362 F.3d at 328.
Any doubt regarding whether to grant a certificate of appealability is resolved in favor of the
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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. 2000).
The movant has not shown that any of the issues raised by his claims are subject to
debate among jurists of reason, or that a procedural ruling was incorrect. In addition, the
questions presented are not worthy of encouragement to proceed further. The movant has failed
to make a sufficient showing to merit the issuance of a certificate of appealability.
Accordingly, finding no plain error in the findings of fact and conclusions of law of the
Magistrate Judge, the Court ADOPTS the Report and Recommendation of the Magistrate Judge
(Docket No. 7) as the findings and conclusions of this Court. It is thereby ORDERED that Mr.
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Thurman’s motion is DENIED.
The Court further AMENDS the sentencing hearing minutes to reflect that Mr.
Thurman’s objections to the Presentence Report were granted, and that Mr. Thurman was
sentenced in accordance with Paragraph 75 of the Presentence Report. See 5:13-cr-00008-RWSCMC-1, Docket No. 47.
A final judgment will be entered in this case in accordance with the above.

A

certificate of appealability will not be issued.
SIGNED this 9th day of January, 2018.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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