Ramos v. United States of America
Filing
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OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S MEMORANDUM AND RECOMMENDATION as to Roberto Ramos re: adopting 6364 Report and Recommendation, denying 6341 Motion to Vacate (2255) filed by Roberto Ramos, granting 6345 Motion to Dismiss filed by USA. A certificate of appealability is DENIED. ( Signed by Judge Melinda Harmon) (see entry 6378 with 4:95cr142-57)(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.
ROBERTO RAMOS
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September 28, 2017
David J. Bradley, Clerk
CRIMINAL ACTION NO. 4:95-CR-00142-57
CVIL ACTION NO. 4:16-CV-01852
OPINION AND ORDER
ADOPTING MAGISTRATE JUDGE’S MEMORANDUM AND RECOMMENDATION
Pending before the Court in the above referenced proceeding is Movant Roberto Ramos‟s
§ 2255 Motion to Vacate, Set Aside or Correct Sentence (Doc. 6341); the United States‟
Response and Motion to Dismiss (Doc. 6345); and Judge Stacy‟s Memorandum and
Recommendation that the Court deny the § 2255 Motion and grant the United States‟ Motion for
Summary Dismissal. (Doc. 6364). 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 right to appeal, a Court may presume that he “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,
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result in a complete miscarriage of justice.” United States v. Gaudet, 81 F.3d 585, 589 (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
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 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
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a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the
district court‟s resolution of his 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 Summary 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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