Figueroa v. USA

Filing 9

Order Accepting 8 Findings and Recommendations and Denying Certificate of Appealability: The court denies Petitioners Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 2 ), and d ismisses with prejudice this action. 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. (Ordered by Judge Sam A Lindsay on 10/30/2017) (ams)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

CHRIS FRANK FIGUEROA,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 3:16-CV-1862-L

ORDER
On September 26, 2017, 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 Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody (Doc. 2). No objections were filed to
the Report.
Having reviewed the pleadings, file, 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. Accordingly, the court denies Petitioner’s Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 2), 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:

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 magistrate judge’s 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 30th day of October, 2017.

_________________________________
Sam A. Lindsay
United States District Judge

(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