Miller v. USA

Filing 8

ORDER: The court determines that the 7 findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. The court, therefore, grants Respondent United States' Motion to Dismiss (Doc. 6 ), denies Petitioner 's 1 Motion Under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, and dismisses with prejudice this action. The court denies a certificate of appealability. (Ordered by Judge Sam A Lindsay on 10/12/2017) (sss)

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

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Civil Action No. 3:16-CV-1838-L
Criminal Case No. 3:13-CR-431-L

ORDER
On September 13, 2017, United States Magistrate Judge Paul D. Stickney entered the
Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”),
recommending that the court grant Respondent United States’ Motion to Dismiss (Doc. 6), filed
September 7, 2016, and dismiss with prejudice this habeas action brought pursuant to 28 U.S.C. §
2255 as time-barred. In addition, the magistrate judge concluded that there was no basis to support
equitable tolling. No objections to the Report were filed as of the date of this order.
After considering Petitioner’s § 2255 motion, the motion to dismiss to which no response
was filed, the 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,
grants Respondent United States’ Motion to Dismiss (Doc. 6), denies Petitioner’s Motion Under
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, 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, he must pay the $505 appellate filing fee or submit a
motion to proceed in forma pauperis on appeal.
It is so ordered this 12th day of October, 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