Thomas v. USA

Filing 6

Order Accepting 4 Findings, Conclusions, and Recommendation of the United States Magistrate Judge and Denying Certificate of Appealability re: 2 Motion to Vacate under 28 U.S.C. 2255. (Ordered by Judge Sam A Lindsay on 11/29/2016) (ykp)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KATRINA THOMAS
(BOP Register No. 47768-177),
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 3:16-CV-2910-L

ORDER
This habeas case, which was brought pursuant to 28 U.S.C. § 2255, was referred to
Magistrate Judge Paul D. Stickney, who entered the Findings, Conclusions, and Recommendation
of the United States Magistrate Judge (“Report”) on October 19, 2016, recommending that the court
dismiss the Section 2255 motion pursuant to Rule 4(b) of the Rules Governing Section 2255
Proceedings for the United States District Courts, as Petitioner is not entitled to relief, and dismiss
this action with prejudice. On November 4, 2016, Petitioner filed a Motion for Reconsideration to
File Supplemental Adjustment via Mitigating Rol[e] (Doc. 5). The court construes this motion as
an objection to the Report.
Having reviewed the motion, file, Report, and record in this case, and having reviewed de
novo those portions of the Report to which the objection was made, 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 overrules the Petitioner’s objection (Petitioner’s Motion for Reconsideration

Order – Page 1

to File Supplemental Adjustment via Mitigating Rol[e]) and dismisses with prejudice this action.
The clerk shall term any matters pending in this case.
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
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 (“IFP”), unless he has been granted IFP status by the district
court.
It is so ordered this 29th day of November, 2016.

_________________________________
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