Prodencio v. USA
Filing
4
Order Accepting 3 Findings and Recommendations and Denying Certificate of Appealability. (Ordered by Judge David C Godbey on 10/21/2016) (aaa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ALEJANDRO RAMOS PRODENCIO,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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CIVIL CASE NO. 3:16-CV-1898-N-BK
(CRIMINAL CASE NO. 3:05-CR-018-N-4)
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
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.
IT IS THEREFORE ORDERED that the motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct sentence is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction
because Petitioner has not obtained authorization to file a successive habeas petition from the
United States Court of Appeals for the Fifth Circuit. See 28 U.S.C. § 2244(b)(1) and (3).
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing Sections 2254 and 2255 Proceedings in the United
States District Court, 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).1
If petitioner files a notice of appeal,
( ) petitioner may proceed in forma pauperis on appeal.
(X) petitioner must pay the $505.00 appellate filing fee or submit a motion to proceed in
forma pauperis.
SO ORDERED this 21st. day of October, 2016.
_________________________________
UNITED STATES DISTRICT JUDGE
1
Rule 11 of the Rules Governing §§ 2254 and 2255 Proceedings 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 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.
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