Mueller v. USA

Filing 15

AMENDED ORDER Accepting 11 Findings, Conclusions and Recommendations of the United States Magistrate Judge. The motion to vacate sentence under 28 U.S.C. § 2255 is DENIED. The Court DENIES a certificate of appealability. (Ordered by Judge Jane J. Boyle on 1/31/2019) (zkc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

CRAIG DON MUELLER,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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CIVIL NO. 3:17-CV-02408-B-BK
(CRIMINAL NO. 3:14-CR-367-B-68)

AMENDED ORDER ACCEPTING FINDINGS, CONCLUSIONS AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND
DENYING CERTIFICATE OF APPEALABILITY
Before the Court are Movant’s objections filed January 29, 2019.
By order filed January 29, 2019, the Court accepted the Findings, Conclusions and
Recommendations of the U.S. Magistrate Judge and entered Judgment dismissing the petition for
writ of habeas corpus, not having seen Movant’s objection. The Court now considers the objections.
After a de novo review of those portions of the proposed findings and recommendation to which
objection was made, the Court OVERRULES Movant’s Objections. Therefore, the judgment
remains undisturbed.
IT IS THEREFORE ORDERED that the motion to vacate sentence under 28 U.S.C. § 2255
is DENIED.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing Section 2255 Proceedings for 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 movant 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 movant files a notice of appeal,
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movant may proceed in forma pauperis on appeal.

(X)

movant must pay the $505.00 appellate filing fee or submit a motion to proceed in
forma pauperis.
SO ORDERED this 31st day of January, 2019.

_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

1

Rule 11 of the Rules Governing § 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. These rules do not extend the time to appeal the original judgment of
conviction.