Blackburn v. USA

Filing 20

ORDER ACCEPTING 18 FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: The motion to vacate, set aside or correct sentence filed under 28 U.S.C. § 2255 is DENIED with prejudice. The movant is DENIED a Certificate of Appealability. (Ordered by Judge Jane J. Boyle on 4/24/2018) (sss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JEREMY BLACKBURN,
ID # 46001-177,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 3:16-CV-0052-B
No. 3:13-CR-0071-B

ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court are Movant’s objections to the Findings, Conclusions, and
Recommendation of the United States Magistrate Judge (doc. 19). Movant presents argument that
he did not clearly present in his 28 U.S.C. § 2255 motion. He asserts that the abstention doctrine
precluded the federal criminal prosecution after a state criminal prosecution had begun. His
argument lacks merit. Under the dual sovereignty doctrine, both the United States and a state may
prosecute someone for conduct that is both a federal and state offense. See United States v. Angleton,
314 F.3d 767, 771-72 (5th Cir. 2002). The abstention doctrine does not prevent a federal
prosecution that is permitted by the dual sovereignty doctrine. See United States v. Jackson, 491 F.
App’x 554, 557 (6th Cir. 2012).
After reviewing all relevant matters of record in this case, including the Findings, Conclusions, and Recommendation of the United States Magistrate Judge and the objections thereto, in
accordance with 28 U.S.C. § 636(b)(1), the Court is of the opinion that the Findings and Conclusions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of
the Court. For the reasons stated in the Findings, Conclusions, and Recommendation of the United
States Magistrate Judge, the motion to vacate, set aside or correct sentence filed under 28 U.S.C.

§ 2255 is DENIED with prejudice.
In accordance with Fed. R. App. P. 22(b) and 28 U.S.C. § 2253(c) and after considering the
record in this case and the recommendation of the Magistrate Judge, the movant is DENIED a
Certificate of Appealability. The Court adopts and incorporates by reference the Magistrate Judge’s
Findings, Conclusions and Recommendation in support of its finding that the 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).
If the movant files a notice of appeal, he must pay the $505.00 appellate filing fee or submit
a motion to proceed in forma pauperis and a properly signed certificate of inmate trust account.
SIGNED this 24th day of April , 2018.

_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

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