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)

Download PDF
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.

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?