Hurrelbrink v. USA

Filing 20

Order Accepting 19 Findings and Recommendations and Denying Certificate of Appealability re: 1 Motion to Vacate under 28 U.S.C. 2255 filed by Virginia Hurrelbrink. The court denies Petitioner's Motion Under 28 U.S.C. ' 2255 to Vacate, Set Aside, or Correct Sentence and dismisses with prejudice this action. (Ordered by Judge Sam A Lindsay on 5/2/2017) (ndt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
VIRGINA HURRELBRINK,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 3:15-CV-3978-L

ORDER
This habeas case, which was brought pursuant to 28 U.S.C. § 2255, was referred to
Magistrate Judge Renee Harris Toliver, who entered the Findings, Conclusions, and
Recommendation of the United States Magistrate Judge (“Report”) on March 27, 2017. The
Report recommends that the motion under 28 U.S.C. ' 2255 to vacate, set aside, or correct sentence
be denied. No objections were filed to the Report.
Having reviewed the Report, motion, record, and applicable law, the court determines that
the findings and conclusions of the magistrate judge are correct, and accepts them as those of the
court. Accordingly, the court denies Petitioner’s Motion Under 28 U.S.C. ' 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in State Custody (Doc. 1); and dismisses with prejudice
this action.
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 Report filed in this case. In the
event that Petitioner files a notice of appeal, she must pay the $505 appellate filing fee or submit
a motion to proceed in forma pauperis (“IFP”), unless she has been granted IFP status by the
district court.
It is so ordered this 2nd day of May, 2017.

_________________________________
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