Garcia v. USA
Filing
11
ORDER ACCEPTING 9 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND DENYING A CERTIFICATE OF APPEALABILITY. Accordingly, the 1 Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to the provisions of 28 U.S.C. § 2255 is DENIED with prejudice. Magistrate Judge Jeff Kaplan no longer assigned to case. (Ordered by Judge Reed C O'Connor on 4/11/2012) (ctf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JOSE INES GARCIA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civil Action No. 3:11-cv-2911-O
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE AND
DENYING A CERTIFICATE OF APPEALABILITY
The United States Magistrate Judge made findings, conclusions, and a recommendation in
this case. Petitioner filed objections. The Court has conducted a de novo review of those portions
of the proposed findings and recommendation to which objection was made. The Court finds that
the Findings, Conclusions, and Recommendation of the United States Magistrate Judge are correct.
Accordingly, Petitioner’s objections are OVERRULED, and the Court ACCEPTS the Findings,
Conclusions, and Recommendation of the United States Magistrate Judge as the findings of the
Court.
Accordingly, the Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to the
provisions of 28 U.S.C. § 2255 is DENIED with prejudice.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c),
the Court DENIES a certificate of appealability. The Court adopts and incorporates by reference
the Magistrate Judge’s Findings, Conclusions, and Recommendation filed in this case in support of
its finding that Petitioner has failed to show (1) that reasonable jurists would find this Court’s
“assessment of the constitutional claims debatable or wrong,” or (2) that reasonable jurists would
find “it debatable whether the petition states a valid claim of the denial of a constitutional right” and
“debatable whether [this Court] was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
473, 484 (2000).1
In the event Petitioner will file a notice of appeal, the Court notes that:
( )
Petitioner will proceed in forma pauperis on appeal.
(X)
Petitioner will need to pay the $455.00 appellate filing fee or submit a motion to proceed in
forma pauperis.
SO ORDERED on this 11th day of April, 2012.
_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE
1
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended effective on December 1, 2009,
reads as follows:
(a) Certificate of Appealability. The district court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant. Before entering the final order, the court may direct the parties to submit
arguments on whether a certificate should issue. If the court issues a certificate, the court must state the specific issue
or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may
not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.
A motion to reconsider a denial does not extend the time to appeal.
(b) Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to appeal an order
entered under these rules. A timely notice of appeal must be filed even if the district court issues a certificate of
appealability.
2
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