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)

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

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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

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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 P.72(b) advisory committee=s note (1983)) superceded by statute on other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).

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