Zuniga v. United States of America
ORDER ADOPTING RECOMMENDATION OF THE MAGISTRATE JUDGE re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 4:10cr790-05 (Defendant No. 5). A Certificate of Appealability is DENIED. (Signed by Judge Ewing Werlein, Jr) Parties notified.(gkelner, 4)
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
UNITED STATES OF AMERICA,
JOSE MANUEL ZUNIGA,
CRIMINAL ACTION NO. H-10-790-5
CIVIL ACTION NO. H-14-0456
ORDER ADOPTING RECOMMENDATION OF THE MAGISTRATE JUDGE
Pending is Defendant/Movant Jose Manuel Zuniga's
Set Aside or Correct Sentence Pursuant
480), and the Government's Motion for Summary Judgment Pursuant to
Movant's Plea Agreement Waiver; Alternatively, Response and Motion
The Court has received from the
Magistrate Judge a Memorandum and Recommendation recommending that
the Government's Motion for Summary Judgment be GRANTED and that
2255 Motion be DENIED and DISMISSED.
Zuniga has filed
Obj ections (Document No. 501) to the Memorandum and Recommendation.
Government's Motion for Summary Judgment, Zuniga's
the Magistrate Judge's Memorandum and Recommendation, and Zuniga's
Objections to the 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
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 21,2014,
adopted in its
entirety as the opinion of the Court, that the Government's Motion
for Summary Judgment (Document No. 495) is GRANTED and Movant Jose
Manuel Zuniga's §
2255 Motion to Vacate,
Sentence (Document No. 480) is DENIED and DISMISSED wi th prej udice.
It is further
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."
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."
v. McDaniel, 120 S. Ct. 1595, 1603-1604 (2000)
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
Beazley v. Johnson, 242 F.3d 248, 263 (5 th Cir.), cert. denied, 122
reason would find it debatable whether the petition states a valid
claim of the denial of constitutional right and that jurists of
correct in its procedural ruling."
Slack, 120 S. Ct. at 1604.
district court may deny a certificate of appealability sua sponte,
Johnson, 211 F.3d 895, 898
(5 th Cir. 2000).
Recommendation, which has been adopted as the opinion of the Court,
the Court determines that reasonable jurists would not debate the
correctness of any of the substantive rulings.
The Clerk will enter this Order and send copies to all parties
Signed at Houston, Texas this
~~y of b~~ 2014.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?