Zavala v. USA

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Government's motion to dismiss 6 is GRANTED. Petitioner's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. 2255 is DENIED and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. All motions not previously ruled on are hereby DENIED. Signed by Judge Leonard Davis on 01/06/15. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
RENE ZAVALA, #12839-078

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 6:14cv551
CRIM. NO. 6:06CR00027-004

ORDER OF DISMISSAL
Movant Rene Zavala, a prisoner confined at U.S.P. Big Sandy, filed the above-styled and
numbered successive motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. §
2255. The cause of action was referred to United States Magistrate Judge K. Nicole Mitchell, who
issued a Report and Recommendation concluding that the motion should be dismissed as timebarred. Zavala has filed objections.
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and
having made a de novo review of the objections raised by Zavala to the Report, the Court is of the
opinion that the findings and conclusions of the Magistrate Judge are correct and the objections
by Zavala are without merit. It is noted that Zavala is seeking relief based on Alleyne v. United
States, 570 U.S. ___, 133 S. Ct. 2151 (2013). Alleyne, however, does not provide a basis for
relief in this proceeding. In re Kemper, 735 F.3d 211, 212 (5th Cir. 2013) (The “Supreme Court
did not declare that Alleyne applies retroactively on collateral review.”). See also Fox v. United
States, No. 6:13cv622, 2014 WL 2199995 (E.D. Tex. May 27, 2014). Therefore, the Court hereby
adopts the findings and conclusions of the Magistrate Judge as the findings and conclusions of the
Court. It is accordingly
ORDERED that the Government’s motion to dismiss (docket entry #6) is GRANTED.
It is further

ORDERED that Zavala’s motion to vacate, set aside or correct his sentence pursuant to
28 U.S.C. § 2255 is DENIED and the case is DISMISSED with prejudice. It is further
ORDERED that a certificate of appealability is DENIED. It is finally
ORDERED that all motions not previously ruled on are hereby DENIED.
So ORDERED and SIGNED this 6th day of January, 2015.

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LEONARD DAVIS
UNITED STATES DISTRICT JUDGE

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