Espericueta v. United States of America

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 26 MOTION for Leave to Appeal in forma pauperis, 39 Report and Recommendations (Signed by Judge Randy Crane) Parties notified.(jengonzalez, 7)

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United States District Court Southern District of Texas ENTERED UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION DEVADIP CARLOS ESPERICUETA Movant VS. UNITED STATES OF AMERICA Respondent October 20, 2017 David J. Bradley, Clerk § § § § CIVIL ACTION NO. 7:13-CV-205 § § ORDER ADOPTING REPORT AND RECOMMENDATION Pending before the Court is Movant’s motion for leave to proceed in forma pauperis (“IFP) on appeal from the Court’s dismissal of his claims pursuant to 28 U.S.C. 2255 (D.E. No. 26). On August 24, 2017, the Magistrate Court issued the Report and Recommendation, recommending that Movant’s motion for leave to proceed IFP on appeal be denied as moot because Movant has already paid the entire appellate fee. The time for filing objections has passed, and no objections have been filed. Pursuant to Federal Rule of Civil Procedure 72(b), the Court has reviewed the Report and Recommendation for clear error.1 Finding no clear error, the Court adopts the Report and Recommendation in its entirety. Accordingly, Movant’s motion for leave to proceed IFP on appeal (D.E. No. 26) is DENIED as moot. 1 As noted by the Fifth Circuit, A[t]he advisory committee=s note to Rule 72(b) states that, >[w]hen no timely objection is filed, the [district] court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.=@ Douglas v. United Services Auto. Ass=n, 79 F.3d 1415, 1420 (5th Cir. 1996)(quoting Fed. R. Civ. P.72(b) advisory committee=s note (1983)) superceded by statute on other grounds by 28 U.S.C. ' 636(b)(1), as stated in ACS Recovery Servs., Inc v. Griffin, No. 11-40446, 2012 WL 1071216, at *7 n.5 (5th Cir. April 2, 2012). 1/2 SO ORDERED this 20th day of October, 2017, at McAllen, Texas. ___________________________________ Randy Crane United States District Judge 2/2

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