Council v. USA
Filing
8
Order Accepting 7 Findings and Recommendations of the United States Magistrate Judge and Denying Certificate of Appealability. The court denies Petitioner's Motion to Vacate, Set-aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 2 ), and dismisses with prejudice this habeas action as barred by the statute of limitations without any basis for equitable tolling. (Ordered by Judge Sam A Lindsay on 1/14/2019) (aaa)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ROBERT EDWARD COUNCIL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civil Action No. 3:17-CV-1927-L
Criminal No. 3:15-CR-195-L
ORDER
On October 30, 2018, the Findings, Conclusions and Recommendation of the United States
Magistrate Judge (“Report”) were entered in this case (Doc. 7), recommending that the court
summarily dismiss this habeas action as barred by the statute of limitations without any basis for
equitable tolling. No objections to the Report were filed.
After considering Petitioner’s motion, the file, record in this case, and Report, 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 denies Petitioner’s Motion to Vacate, Set-aside, or
Correct Sentence under 28 U.S.C. § 2255 (Doc. 2), and dismisses with prejudice this habeas action
as barred by the statute of limitations without any basis for equitable tolling.
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
*
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
Order – Page 1
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 magistrate judge’s 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 on appeal.
It is so ordered this 14th day of January, 2019.
_________________________________
Sam A. Lindsay
United States District Judge
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
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