Noble v. UNITED STATES OF AMERICA

Filing 7

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 4:09-cr-00311 (Defendant No. 1).(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
fi

UNITED STATES OF AMERICA,
Plaintiff-Respondent,
V.

ROGER LYNN NOBLE,

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CIVIL ACTION NO. H-11-0636
CRIMINAL ACTION NO. H-09-0311

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Defendant-Movant.

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ORDER ADOPTING THE PROPOSED FINDINGS OF FACT AND CONCLUSIONS
OF LAW, AND THE RECOMMENDATION OF THE MAGISTRATE JUDGE

This case was

referred to the Magistrate Judge

for an

evidentiary hearing on Movant Roger Lynn Noble1s claim that his
counsel was ineffective for failing to file a direct appeal.

An

evidentiary hearing was held before the Magistrate Judge on
November 16, 2011.

The Court has received from the Magistrate

Judge Proposed Findings of Fact and Conclusions of Law, and
Recommendation that All Relief be Denied on Noble's
to Vacate, Set Aside or Correct Sentence.

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2255 Motion

Noble has

filed

objections to the Magistrate's Proposed Findings of Fact and
Conclusions of Law and Recommendation

(Document No. 75 in Criminal

Action No. H-09-0311). The Court, after careful review of Noble's
Objections, and having made a de novo examination of Noble's claim
and

all

testimony and

documentary evidence

received at

the

evidentiary hearing, is of the opinion that the findings of the
Magistrate Judge are supported by a preponderance of the evidence

and that such findings and the recommendations of the Magistrate
Judge should be and hereby are accepted by the Court in their
entirety; and Noble's Objections (Document No. 75) are OVERRULED.
Accordingly,
It is ORDERED and ADJUDGED for the reasons set forth in the
Magistrate Judge's Proposed Findings of Fact and Conclusions of
Law, and Recommendation that All Relief be Denied on Movantls
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2255 Motion to Vacate, Set Aside or Correct Sentence, filed on

November 30, 2011, which is adopted in its entirety as the opinion
of this Court, that all relief on Movant Roger Lynn Noble's

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2255

Motion to Vacate, Set Aside or Correct Sentence (Document No. 45)
is DENIED.

It is further

ORDERED that a Certificate of Appealability is DENIED.

A

certificate of appealability from a habeas corpus proceeding will
not issue unless the petitioner makes ' substantial showing of the
a
denial of a constitutional right."

28 U.S.C.

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2253 (c)(2). This

standard "includes showing that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further." Slack
v. McDaniel, 120 S. Ct. 1595, 1603-1604 (2000) (internal quotations
and citations omitted). Stated differently, where the claims have
been dismissed on the merits, the petitioner "must demonstrate that
reasonable jurists would find the district court's assessment of

the constitutional claims debatable or wrong."

I . at 1604;
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Beazley v. Johnson, 242 F.3d 248, 263 (5th
Cir.), cert. denied, 122
S. Ct. 329

(2001).

When the claims have been dismissed on

procedural grounds, the petitioner must show that 'jurists

of

reason would find it debatable whether the petition states a valid
claim of the denial of constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling."

Slack

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120 S. Ct. at 1604. A

district court may deny a certificate of appealability sua sponte,
without requiring further briefing or argument.

Alexander v.

Johnson, 211 F.3d 895, 898 (5th
Cir. 2000).
For the reasons set forth in the Proposed Findings of Fact and
Conclusions of Law and Recommendation that All Relief be Denied on
Noble's

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2255 Motion to Vacate, Set Aside or Correct Sentence, the

Court determines that reasonable jurists would not find debatable
the correctness of the findings and conclusions contained therein.
The Clerk will enter this Order and send copies to all parties
of record.
Signed at Houston, Texas on this

of April, 2012.