Montemayor v. USA
ORDER ACCEPTING 10 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND DENYING A CERTIFICATE OF APPEALABILITY re: 1 Motion to Vacate under 28 U.S.C. 2255. (Ordered by Senior Judge A. Joe Fish on 10/13/2017) (ykp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
UNITED STATES OF AMERICA,
CIVIL ACTION NO.
CRIMINAL ACTION NO.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE
JUDGE, AND DENYING A CERTIFICATE OF APPEALABILITY
The United States Magistrate Judge made findings, conclusions and a
recommendation in this case. No objections were filed. The district court reviewed
the proposed findings, conclusions and recommendation for plain error. Finding
none, the court ACCEPTS the findings, conclusions and recommendation of the
United States Magistrate Judge.
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
adopts and incorporates by reference the magistrate judge’s findings, conclusions and
recommendation filed in this case 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).*
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended
effective on December 1, 2009, reads 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
(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
In the event, the petitioner will file a notice of appeal, the court notes that
the petitioner will proceed in forma pauperis on appeal.
the petitioner will need to pay the $505.00 appellate filing
fee or submit a motion to proceed in forma pauperis.
October 13, 2017.
A. JOE FISH
Senior United States District Judge
the district court issues a certificate of
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