Lopez v. United States of America

Filing 4

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S MEMORANDUM AND RECOMMENDATION as to Joel Lopez, Sr, A certificate of appealability is DENIED. (see also 4:08cr187-2. entry 268)(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA
VS.
JOEL LOPEZ SR

§
§
§
§
§

September 27, 2017
David J. Bradley, Clerk

CRIMINAL ACTION NO. 4:08-CR-00187-2

CIVIL ACTION NO. 4:16-CV-01789

OPINION AND ORDER
ADOPTING MAGISTRATE JUDGE’S MEMORANDUM AND RECOMMENDATION
Pending before the Court in the above referenced proceeding is Movant Joel Lopez, Sr.‟s,
§ 2255 Motion to Vacate, Set Aside or Correct Sentence (Doc. 261); the United States‟ Motion
to Dismiss (Doc. 266); and Judge Stacy‟s Memorandum and Recommendation that the Court
deny the § 2255 Motion and grant the United States‟ Motion for Dismissal. (Doc. 267). No
objections were filed to the Memorandum and Recommendation.
Standard of Review
Where no party objects to the Magistrate Judge‟s Memorandum and Recommendation,
the Court is not required to perform a de novo review of the Magistrate Judge‟s determination,
but need only review it to decide whether it is clearly erroneous or contrary to law. Gamez v.
United States, No. SA-06-CR-401-XR, 2014 WL 2114043, at *2 (W.D. Tex. May 20, 2014)
(citing United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989)). Once a defendant has been
convicted and has exhausted or waived his or her right to appeal, a Court may presume that he or
she “stands fairly and finally convicted.” United States v. Willis, 273 F.3d 592, 595 (5th Cir.
2001). Therefore relief under § 2255 is limited to “transgressions of constitutional rights and for
a narrow range of injuries that could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice.” United States v. Gaudet, 81 F.3d 585, 589
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(5th Cir. 1996). The court‟s ability to reduce or modify a sentence of imprisonment once it has
been imposed is restricted. United States v. Lopez, 26 F.3d 512, 515 (5th Cir. 1994) (per curiam).
There are four grounds on which a defendant may move to vacate, set aside, or correct his or her
sentence under § 2255: (1) “the sentence was imposed in violation of the Constitution or laws of
the United States”; (2) “the [district] court was without jurisdiction to impose such sentence”; (3)
“the sentence was in excess of the maximum authorized by law”; and (4) the sentence was
“otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “A defendant can challenge [his or
her] conviction after it is presumed final only on issues of constitutional or jurisdictional
magnitude . . . and may not raise an issue for the first time on collateral review without showing
both „cause‟ for his[ or her] procedural default and „actual prejudice‟ resulting from the error.”
United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (citations omitted).
The Court has carefully reviewed the filings, the Magistrate Judge‟s Memorandum and
Recommendation, and the applicable law and finds the Memorandum and Recommendation is
not erroneous in its factual findings nor contrary to law. Accordingly, the Court hereby adopts
the Magistrate Judge‟s Memorandum and Recommendation as its own.
Finally, under 28 U.S.C. § 2253(c)(1)(B), “Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the court of appeals from . . . the final
order in a proceeding under section 2255.” See also Fed. R. App. P. 22(b)(1) (“In a habeas
corpus proceeding in which the detention complained of arises from . . . a 28 U.S.C. § 2255
proceeding, the applicant cannot take an appeal unless a circuit justice or a circuit or district
judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”).
Furthermore, “[a] certificate of appealability may issue . . . only if the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A
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petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the
district court‟s resolution of his[ or her] constitutional claims or that jurists could conclude the
issue presented are adequate to deserve encouragement to proceed further.”

Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003), citing Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where
the district court denies a § 2255 motion on the merits, to warrant an certificate of appealability a
movant must be able to show that “reasonable jurists would find the district court‟s assessment
of the constitutional claims debatable or wrong.” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.
2003), citing Slack, 529 U.S. at 484. A district court may deny a certificate of appealability sua
sponte. Haynes v. Quarterman, 526 F.3d 189, 193 (5th Cir. 2008) (citing Alexander v. Johnson,
211 F.3d 895, 898 (5th Cir. 2000) (per curiam)). Accordingly, it is hereby
ORDERED the United States‟ Motion for Dismissal is GRANTED, the Movant‟s § 2255
Motion is DENIED. It is further
ORDERED that a certificate of appealability is DENIED.
SIGNED at Houston, Texas, this 26th day of September, 2017.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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