Thompson v. USA

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 6 Report and Recommendations. The above-styled motion to vacate, set aside or correct sentence is DENIED and DISMISSED. Signed by District Judge Robert W. Schroeder, III on 12/11/2020. (slo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
JOSHUA THOMPSON,

§
§
§
§
§
§
§
§
§
§

Plaintiff,
v.
USA,
Defendant.

CIVIL ACTION NO. 5:18-CV-00024-RWS

ORDER
Movant Joshua Thompson, an inmate confined at the Federal Correctional Institution
in Forrest City, Arkansas, 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 that the motion be denied and dismissed. Docket No. 6.
The Court has received and considered the Report and Recommendation of United
States Magistrate Judge filed pursuant to such referral, along with the record, pleadings and
all

available

evidence.

Thompson

acknowledged

receipt

of

the

Report

and

Recommendation on October 22, 2020. Docket No. 7. No objections to the Report and
Recommendation have been filed.

Accordingly, Thompson is not entitled to de novo

review by the District Judge of those findings, conclusions and recommendations, and
except upon grounds of plain error, he is barred from appellate review of the unobjected-to
factual findings and legal conclusions accepted and adopted by the District Court.

Nonetheless, the Court has reviewed the pleadings in this case and the Report of the
Magistrate Judge and agrees with the Report of the Magistrate Judge. See United States v. Raddatz,
447 U.S. 667, 683 (1980) (“[T]he statute permits the district court to give to the magistrate’s
proposed findings of fact and recommendations ‘such weight as [their] merit commands and the
sound discretion of the judge warrants . . . .’ ”) (quoting Mathews v. Weber, 23 U.S. 261, 275
(1976)).
Additionally, the Court finds that Thompson 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, Thompson has not shown that any of the issues raised by his claims are subject to
debate among jurists of reason. Thompson advances factual and legal questions that are not novel
and that have been consistently resolved adversely to his position. In addition, the questions

.
.
presented are not worthy of encouragement to proceed further. Therefore, Thompson 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.
The Court hereby ADOPTS the Report and Recommendation of the United States
Magistrate Judge as the findings and conclusions of this Court. Accordingly, it is
The above-styled motion to vacate, set aside or correct sentence is DENIED and
DISMISSED.
So ORDERED and SIGNED this 11th day of December, 2020.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE