Gonzales v. UNITED STATES OF AMERICA

Filing 14

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 11 MOTION to Dismiss 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 4:11cr343 (Defendant No. 1) is GRANTED, 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 4:11cr343 (Defendant No. 1) is DENIED and DISMISSED with prejudice. A certificate of appealability is DENIED.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, 4)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA,

§
§
§
§

Plaintiff-Respondent,

V.

§
§
§
§
§

RICHARD R. GONZALES,
Defendant-Movant.

CRIMINAL ACTION NO. H-09-533
CIVIL ACTION NO. H-13-0791

ORDER ADOPTING RECOMMENDATION OF THE MAGISTRATE JUDGE

Pending is the United States' Response and Motion to Dismiss
(Document No. 109) and Defendant/Movant Richard R. Gonzales'

§

2255

Motion to Vacate, Set Aside or Correct Sentence (Document No. 98).
The Court has received from the Magistrate Judge a Memorandum and
Recommendation recommending that the Government's Motion to Dismiss
be

GRANTED

and

that

Gonzales's

DISMISSED WITH PREJUDICE.

Dismiss,

Gonzales's

of
§

the

2255

Motion

be

DENIED

and

No Objections have been filed to the

Memorandum and Recommendation.
novo determination

§

The Court, after having made a de

Government's

2255

Motion,

and

Response
the

and Motion

Magistrate

to

Judge's

Memorandum and Recommendation, is of the opinion that the findings
and recommendations of the Magistrate Judge are correct and should
be

and

hereby

are

accepted

by

the

Court

in

their

entirety.

Therefore,
It is ORDERED and ADJUDGED for the reasons set forth in the
Memorandum and Recommendation of the United States Magistrate Judge

signed and filed on October 28,

2013,

which is

adopted in its

entirety as the opinion of the Court, that the Government's Motion
to Dismiss
Gonzales's

(Document No.

109)

is GRANTED and Movant Richard R.

2255 Motion to Vacate, Set Aside, or Correct Sentence

§

(Document No.

98)

is DENIED and DISMISSED with prejudice.

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 "a substantial showing of the
denial of a constitutional right."

28 U.S.C.

standard "includes showing that reasonable

§

2253(c) (2).

This

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."
v. McDaniel, 120 S.

ct.

1595, 1603-1604 (2000)

and citations omitted).

Slack

(internal quotations

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."

Id.

at

1604;

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

329

procedural

(2001).
grounds,

When
the

the

claims

have

petitioner must

show

been
that

dismissed

on

"jurists

of

reason would find it debatable whether the petition states a valid
claim of the denial of constitutional right and that jurists of

2

reason

would

find

it

debatable

whether

correct in its procedural ruling."

the

district

court

Slack, 120 S. Ct. at 1604.

was
A

district court may deny a certificate of appealability sua sponte,
wi thout

requiring

further

Johnson, 211 F.3d 895, 898
For

the

reasons

briefing

or

argument.

Alexander

v.

(5 th Cir. 2000).
set

forth

In

the

Memorandum

and

Recommendation, which has been adopted as the opinion of the Court,
the Court determines that Movant has not made a substantial showing
of the denial of a constitutional right.
The Clerk will enter this Order and send copies to all parties
of record.
Signed at Houston, Texas

~I~/~'

UNITED STATES DISTRICT JUDGE

3