Estevane-Luna v. USA
Order Accepting 5 Findings, Conclusions and Recommendation of the United States Magistrate Judge and Denying Certificate of Appealability. (Ordered by Judge David C Godbey on 12/16/2016) (epm)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
ERIK RAUL ESTEVANE-LUNA
(BOP Register No. 82256-179),
UNITED STATES OF AMERICA,
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).1
In the event Movant will file a notice of appeal, the Court notes that he must
pay the filing fee ($505.00) or file a motion for leave proceed in forma pauperis on
SO ORDERED this 16th day of December, 2016.
DAVID C. GODBEY
UNITED STATES DISTRICT JUDGE
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 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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