Alberty v. USA
Order Accepting 7 Findings and Recommendations and Denying Certificate of Appealability. The court denies Petitioner's § 2255 motion to vacate, set aside, or correct his sentence, and dismisses with prejudice this action. (Ordered by Judge Sam A Lindsay on 10/11/2017) (aaa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
MARCUS DEMOND ALBERTY,
UNITED STATES OF AMERICA,
Civil Action No. 3:16-CV-1403-L
On August 15, 2017, United States Magistrate Judge David L. Horan entered the Findings,
Conclusions and Recommendation of the United States Magistrate Judge (“Report”), recommending
that the court deny Petitioner’s § 2255 motion to vacate, set aside, or correct his sentence. No
objections to the Report were filed.
After carefully reviewing the motion, file, applicable law, record in this case, and Report, the
court determines that the findings and conclusions of the magistrate judge are correct, and accepts
them as those of the court. The court, therefore, denies Petitioner’s § 2255 motion to vacate, set
aside, or correct his sentence, 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),
the court denies a certificate of appealability.* The court determines that Petitioner has failed to
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows:
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
Order – Page 1
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, he must pay the $505 appellate filing fee or submit a
motion to proceed in forma pauperis on appeal.
It is so ordered this 11th day of October, 2017.
Sam A. Lindsay
United States District Judge
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.
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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