Vasquez-Lara v. USA
Filing
6
Order Accepting 3 Findings and Recommendations and Denying Certificate of Appealability. Vasquez-Lara's Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is denied and dismissed without prejudice. (Ordered by Judge Sam A Lindsay on 10/31/2012) (ykp)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DAVID VASQUEZ-LARA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civil Action No. 3:12-CV-2744-L (BH)
Criminal No. 3:11-CR-0119-L
ORDER
Before the court is the Memorandum of Points and Authorities in Support of Motion
Pursuant to § 2255, filed by David Vasquez-Lara (“Vasquez-Lara” or “Petitioner”) on June 22,
2010, which this court liberally construes as a motion to vacate under 28 U.S.C. § 2255. The case
was referred to Magistrate Judge Irma C. Ramirez, who entered Findings, Conclusions and
Recommendation of the United States Magistrate Judge (“Report”) on August 14, 2012,
recommending that the motion be denied. No objections to the Report were filed.
Having reviewed the pleadings, file, and record in this case, and the findings and conclusions
of the magistrate judge, the court determines that the findings and conclusions of the magistrate
judge are correct, and accepts them as those of the court. Accordingly, Vasquez-Lara’s Petition
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is denied and dismissed without
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),
Order – Page 1
the court denies a certificate of appealability.* The court determines 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). In support of this
determination, the court accepts and incorporates by reference the magistrate judge’s report filed in
this case. In the event that Petitioner files a notice of appeal, he must pay the $455 appellate filing
fee or submit a motion to proceed in forma pauperis (“IFP”), unless he has been granted IFP status
by the district court.
It is so ordered this 31st day of October, 2012.
_________________________________
Sam A. Lindsay
United States District Judge
*
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides 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.
Order – Page 2
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