Gonzalez-Huitron v. USA

Filing 13

ORDER adopting the magistrate judge's 11 Report and Recommendation. As a result, a certificate of appealability shall not be issued. Signed by Judge Michael H. Schneider on 2/2/2015. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
JESUS GONZALEZ-HUITRON

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 9:13cv73

ORDER ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Jesus Gonzalez-Huitron, an inmate confined within the Bureau of Prisons, proceeding pro
se, filed the above-styled motion to vacate, set aside or correct sentence. The court referred the
matter to the Honorable Zack Hawthorn, United States Magistrate Judge, for consideration
pursuant to applicable orders of this court.
The Magistrate Judge has submitted a Report and Recommendation of United States
Magistrate Judge concerning this case. The Magistrate Judge recommends the motion to vacate,
set aside or correct sentence be dismissed as barred by the applicable statute of limitations.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. No objections were filed to the Report
and Recommendation.
Accordingly, the proposed findings of fact and conclusions of law of the Magistrate
Judge are correct and the report of the Magistrate Judge is ADOPTED. A final judgment will be
entered dismissing this motion to vacate, set aside or correct sentence.
In addition, the movant is not entitled to the issuance of a certificate of appealability. An
appeal from a judgment denying federal habeas relief may not proceed unless a judge issues a
certificate of appealability. See U.S.C. § 2253. The standard for granting a certificate of
appealability requires a movant to make a substantial showing of the denial of a federal
constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84; Elizalde v. Dretke, 362 F.3d
323, 328 (5th Cir. 2004). In making a 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. Slack, 529 U.S. at 483-84;
Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). Any doubt regarding whether to grant a
certificate of appealability should be resolved in favor of the movant. See Miller v. Johnson, 200
.
F.3d 274, 280-81 (5th Cir. 2000).
In this case, the movant has not shown that the issue of whether his motion to vacate is
barred by the applicable statute of limitations is subject to debate among jurists of reason. Nor
has he shown that the merits of his grounds for review are subject to debate. In addition, the
questions presented are not worthy of encouragement to proceed further. As a result, a certificate
of appealability shall not be issued.
SIGNED this 2nd day of February, 2015.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE