Catalan v. USA
Filing
10
ORDER ACCEPTING 8 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND DENYING A CERTIFICATE OF APPEALABILITY. (Ordered by Judge David C Godbey on 6/28/2019) (mla)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
HELIODORO CATALAN,
# 53836-177,
Movant,
v.
UNITED STATES OF AMERICA
Respondent.
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3:17-CV-3489-N-BT
(3:16-CR-284-N-2)
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. Movant filed objections, and the District Court has made a
de novo review of those portions of the proposed findings and recommendation to which
objection was made. The objections are overruled, and the Court accepts the Findings,
Conclusions and Recommendation of the United States Magistrate Judge.
IT IS THEREFORE ORDERED that the motion to vacate, set aside, or correct
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 Sections 2254 and 2255 Proceedings
in 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 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
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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 petitioner files a notice of appeal,
( ) petitioner may proceed in forma pauperis on appeal.
(X) petitioner must pay the $505.00 appellate filing fee or submit a motion to
proceed in forma pauperis.
SO ORDERED this 28th day of June, 2019.
___________________________________
UNITED STATES DISTRICT JUDGE
1
Rule 11 of the Rules Governing §§ 2254 and 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.
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