Garcia v. United States of America

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 4 MOTION to Dismiss 1 Motion to Vacate/Set Aside/Correct Sentence (2255) - McALLEN , A Certificate of Appealability is DENIED. Case terminated on 3/21/2017.(Signed by Judge Micaela Alvarez) Parties notified.(bgarces, 7)

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United States District Court Southern District of Texas ENTERED UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION RAFAEL GARCIA Movant VS. UNITED STATES OF AMERICA Respondent § § § § § § March 22, 2017 David J. Bradley, Clerk CIVIL ACTION NO. 7:14-cv-412 CRIMINAL NO. 7:13-cr-1024-1 ORDER ADOPTING REPORT AND RECOMMENDATION Pending before the Court is Movant=s motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. ' 2255, which motion had been referred to the Magistrate Court for a report and recommendation. The Magistrate Court issued the Report and Recommendation on February 22, 2017, recommending that Respondent’s Motion to Dismiss (Dkt. Entry No. 4) be granted, and that Movant’s section 2255 motion be denied on the record, and that the claims be dismissed with prejudice, and that a Certificate of Appealability be denied upon the issuance of this Court=s final order. 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, it is hereby ORDERED that Respondent’s Motion to Dismiss (Dkt. Entry No. 4) is GRANTED, Movant’s section 2255 is DENIED on the record, and the claims are DISMISSED with prejudice. A Certificate of Appealability is DENIED. IT IS SO ORDERED. DONE at McAllen, Texas, this 21st day of March, 2017. ___________________________________ Micaela Alvarez United States District Judge 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 P.72(b) advisory committee=s note (1983)) superceded by statute on other grounds by 28 U.S.C. ' 636(b)(1), as stated in ACS Recovery Servs., Inc v. Griffin, No. 11-40446, 2012 WL 1071216, at *7 n.5 (5th Cir.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). 1/1

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