Murtado v. USA

Filing 5

MEMORANDUM ORDER OVERRULING OBJECTIONS AND 2 ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge Michael H. Schneider on 6/22/16. (ljw, )

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

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 9:16cv31

MEMORANDUM ORDER OVERRULING MOVANT’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Movant Wilson Murtado, an inmate confined at the Federal Correctional Institution in
Winton, North Carolina, 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 Keith F. Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The magistrate judge recommends the motion be dismissed based on the applicable statute of
limitations. The court has received and considered the Report and Recommendation of United
States Magistrate Judge filed pursuant to such order, along with the record, pleadings and all
available evidence.
Movant filed objections to the magistrate judge’s Report and Recommendation.
Accordingly, the court conducted a de novo review of the objections in relation to the pleadings
and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court
concludes movant’s objections should be overruled. Therefore, movant’s claims should be
dismissed.
Additionally, movant 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, movant has not shown that any of the issues raised by his claims are subject to
debate among jurists of reason. The factual and legal questions advanced by movant are not
novel and have been consistently resolved adversely to his position. In addition, the questions
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presented are not worthy of encouragement to proceed further. Therefore, movant has failed to
make a sufficient showing to merit the issuance of a certificate of appealability. As a result, a
certificate of appealability shall not be issued.
For the reasons set forth above, movant’s objections are OVERRULED. The 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 in this case in accordance with the
magistrate judge’s recommendations.
SIGNED this 22nd day of June, 2016.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE