Solis-Serna v. United States of America

Filing 11

ORDER adopting 8 Report and Recommendations and granting 6 Motion to Dismiss filed by United States of America. The petitioner's objections are overruled and the 28 USC 2255 motion is DENIED with prejudice. A certificate of appealability is DENIED. Signed by Judge Ron Clark on 6/27/11. (leh, ) (Main Document 11 replaced on 6/28/2011) (leh, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

JOSE SOLIS-SERNA, #16245-078

§

VS.

§

UNITED STATES OF AMERICA

§

CIVIL ACTION NO. 9:10cv100
CRIM NO. 09-CR00002-001

ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner Jose Solis-Serna, an inmate confined in federal prison, proceeding pro se,
filed the above-styled and numbered motion to vacate, set aside or correct his federal sentence
pursuant to 28 U.S.C. § 2255. The motion was referred to United States Magistrate Judge Judith K.
Guthrie, who issued a Report and Recommendation concluding that the motion to dismiss (docket
entry #6) by the Respondent United States should be granted and the Petitioner’s motion should be
denied and dismissed with prejudice. Further, the Magistrate Judge recommended that a certificate
of appealability should be denied. Petitioner has filed written objections (docket entry #10).
Having made a de novo review of the objections raised by Petitioner to the Report, the Court
is of the opinion that the findings and conclusions of the Magistrate Judge are correct and
Petitioner’s objections are without merit. Specifically, Petitioner’s objections consist of little more
than a repetition of the arguments he raised in his response (docket entry #7) to the Respondent’s
motion to dismiss. He therefore already fully argued there that the waiver of appeal to which he
agreed when he accepted the plea agreement in his case did not preclude him from filing his habeas
motion on the issue of ineffective assistance of counsel. He also argued that his habeas motion

1

should receive the benefit of equitable tolling. The Magistrate Judge addressed both of these issues
in detail in her Report and Recommendation, finding that Petitioner’s waiver of appeal did in fact
preclude his claims in his instant habeas motion and that equitable tolling did not apply in this case.
Petitioner objections simply restate the same arguments. The Court finds them to be without merit.
It is therefore
ORDERED that Petitioner’s objections (docket entry #10) are OVERRULED and
Respondent United States’s motion to dismiss (docket entry #6) be GRANTED. It is further
ORDERED that the Petitioner’s motion to vacate, set aside or correct his federal sentence
pursuant to 28 U.S.C. § 2255 is DENIED and DISMISSED WITH PREJUDICE. It is further
ORDERED that a certificate of appealability is hereby DENIED.
So ORDERED and SIGNED this 27 day of June, 2011.

___________________________________
Ron Clark, United States District Judge

2