Alcaraz-Guerrero v. USA

Filing 40

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 38 Report and Recommendations. Signed by District Judge Robert W. Schroeder, III on 11/19/2018. (slo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
MARCO ANTONIO ALCARAZGUERRERO,
Plaintiff,
v.
USA,
Defendant.

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CIVIL ACTION NO. 5:17-CV-00183-RWS

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE=S REPORT AND RECOMMENDATION
Movant, Marco Antonio Alcaraz-Guerrero, a federal prisoner, 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 Craven, United States Magistrate
Judge, at Texarkana, Texas, for consideration pursuant to applicable laws and orders of this Court.
After conducting an evidentiary hearing, the Magistrate Judge recommends the motion be denied.
Docket No. 38.
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
acknowledged receipt of the Report and Recommendation on September 24, 2018 (Docket No.
39). No objections to the Report and Recommendation of United States Magistrate Judge have
been filed by the parties.

Thus, any aggrieved party is barred from de novo review by the district

court of the proposed findings and recommendations of the Magistrate Judge.
Having reviewed the Magistrate Judge’s Report and Recommendation, the Court agrees

that Petitioner’s arguments of ineffective assistance of counsel for failure to produce more
evidence of cooperation at the sentencing hearing and sentencing disparity based on racial basis
are unsupported by evidence in the record.

Docket No. 38 at 14–16.

The Court further agrees

with the Magistrate Judge that Petitioner has demonstrated a clear intend to abandon his remaining
claims.

Id. at 17.
There being no grounds of plain error or manifest injustice, the Court hereby ADOPTS the

Report and Recommendation of the United States Magistrate Judge as the findings and conclusions
of this Court. A Final Judgment will be entered in this case in accordance with the Magistrate
Judge=s recommendations.
Furthermore, the Court is of the opinion movant is not entitled to a certificate of
appealability.

An appeal from a judgment denying post-conviction collateral relief may not

proceed unless a judge issues a certificate of appealability.

See 28 U.S.C. ' 2253. The standard

for a certificate of appealability 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). To make a substantial showing, the movant need
not establish that he would 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.
U.S. at 483-84.

See Slack, 529

Any doubt regarding whether to grant a certificate of appealability should be

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).

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In this case, movant has not shown that any of the issues would be subject to debate among
jurists of reason. The questions presented are not worthy of encouragement to proceed further.
Therefore, the movant has failed to make a sufficient showing to merit the issuance of certificate
of appealability. Accordingly, a certificate of appealability will not be issued.
SIGNED this 19th day of November, 2018.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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