Lara-Ortiz v. United States of America

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 1:15-CR-166 (Defendant No. 01), 24 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 1:15-CR-166 (Defendant No. 01), 19 Report and Recommendations (Signed by Judge Andrew S Hanen) Parties notified.(mperez, 1)

United States District Court
Southern District of Texas

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
JOSE RAUL LARA-ORTIZ

§
§
§
§
§

V.
UNITED STATES OF AMERICA

ENTERED
October 11, 2017
David J. Bradley, Clerk

CIVIL NO. B-17-032
CRIMINAL NO. B-15-166-1

ORDER
Pending is the Magistrate Judge's June 21, 2017, Report and Recommendation in the abovereferenced cause of action. [Doc. No. 19] No objections have been lodged by either side and the time
for doing so has expired. Petitioner has filed a new § 2255 petition which this Court will consider as
not only a new petition but also as an objection to the current Report and Recommendation.
Having considered de novo the Magistrate Judge’s Report and Recommendation and the issues
and objections raised by the petitioner, the Court hereby adopts the Magistrate Judge's Report and
Recommendation. Petitioner Jose Raul Lara-Ortiz’s Motion to Vacate, Set Aside or Correct his
Sentence pursuant to 28 U.S.C. § 2255 [Doc. No. 1] is denied as meritless. Petitioner’s second Motion
to Vacate, Set Aside or Correct Sentence pursuant to § 2255 [Doc. No. 24] is denied for the reasons set
out in the original Report and Recommendation.
The Certificate of Appealability is granted in part and denied in part. The issue as to what
factors should be considered in deciding whether a so-called “rational defendant” would want to appeal
and whether Lara-Ortiz qualifies as such is one that might merit consideration. The caselaw on this
point is sparse and the Court of Appeals may want to consider this issue further. The Certificate of
Appealability is denied as to all other claims.
Signed this 11th day of October, 2017.

___________________________________
Andrew S. Hanen
United States District Judge