Zuniga v. United States of America
Filing
14
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
HOUSTON DIVISION
UNITED STATES OF AMERICA,
§
§
§
§
Plaintiff-Respondent,
V.
§
§
§
§
§
JOSE MANUEL ZUNIGA,
Defendant-Movant.
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
to Vacate,
Set Aside or Correct Sentence Pursuant
§
2255 Motion
(Document No.
480), and the Government's Motion for Summary Judgment Pursuant to
Movant's Plea Agreement Waiver; Alternatively, Response and Motion
to Dismiss
(Document No.
495).
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
Zuniga's
§
2255 Motion be DENIED and DISMISSED.
Zuniga has filed
Obj ections (Document No. 501) to the Memorandum and Recommendation.
The
Court,
after
having
made
a
de
novo
determination
Government's Motion for Summary Judgment, Zuniga's
§
of
the
2255 Motion,
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
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 21,2014,
which is
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,
Set Aside,
or Correct
Sentence (Document No. 480) is DENIED and DISMISSED wi th prej udice.
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
"j urists
of
reason would find it debatable whether the petition states a valid
2
claim of the denial of constitutional right and that jurists of
reason would
find
it
debatable
whether
correct in its procedural ruling."
the
district
court was
Slack, 120 S. Ct. at 1604.
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 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
of record.
Signed at Houston, Texas this
3
~~y of b~~ 2014.
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