Delagarza v. USA
Order Accepting 10 Findings and Recommendations and Denying Certificate of Appealability re: 2 Motion to Vacate under 28 U.S.C. 2255, filed by Luis de la Garza. In the event that the movant files a notice of appeal, he must pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis that is accompanied by a properly signed certificate of inmate trust account. (Ordered by Judge Jane J. Boyle on 11/28/2017) (epm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUIS DE LA GARZA,
ID # 31208-177,
UNITED STATES OF AMERICA,
No. 3:16-CV-3549-B (BH)
No. 3:13-CR-254-B (01)
ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
After reviewing all relevant matters of record in this case, including the Findings, Conclusions, and Recommendation of the United States Magistrate Judge and any objections thereto, in
accordance with 28 U.S.C. § 636(b)(1), the Court is of the opinion that the Findings and Conclusions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of
the Court. For the reasons stated in the Findings, Conclusions, and Recommendation of the United
States Magistrate Judge, the motion to vacate is DENIED with prejudice.
In accordance with Fed. R. App. P. 22(b) and 28 U.S.C. § 2253(c) and after considering the
record in this case and the recommendation of the Magistrate Judge, the Court DENIES the movant
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
In the event that the movant files a notice of appeal, he must pay the $505.00 appellate filing
fee or submit a motion to proceed in forma pauperis that is accompanied by a properly signed
certificate of inmate trust account.
28th day of November
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended effective on December 1, 2009, reads as
(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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