Garcia v. United States of America

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 1 Motion to Vacate/Set Aside/Correct Sentence (2255) - McAllen. A Certificate of Appealability is DENIED. Case terminated on 6/13/2017.(Signed by Judge Micaela Alvarez) Parties notified.(BelindaSaenz, 7)

Download PDF
United States District Court Southern District of Texas UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION ARTEMIO GARCIA JR. Movant VS. UNITED STATES OF AMERICA Respondent § § § § § § ENTERED June 13, 2017 David J. Bradley, Clerk CIVIL ACTION NO. 7-14-499 CRIMINAL NO. 7-12-1410-1 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. On May 16, 2017, the Magistrate Court issued the Report and Recommendation, recommending that Respondent’s Motion to Dismiss be granted and that Movant’s section 2255 Motion be dismissed with prejudice, and that a Certificate of Appealability be denied upon the issuance of this Court’s final order. Movant filed a response, which the Court has carefully reviewed. The response requests that the Court strike certain claims and seeks to add certain other claims. As noted in the Report and Recommendation, Movant filed two separate § 2255 motions and also several motions to amend, all of which were considered by the Magistrate Judge. The time for bringing new claims has long since expired and no reason is presented for the late filing. In any event, the proposed new claims are not in fact new claims at all; they are simply more arguments on the same claims. The response does not include any specific objections to the Report and Recommendation thus the Court disregards it. 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 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 1/2 Recommendation in its entirety. Accordingly, it is hereby ORDERED that Respondent’s Motion to Dismiss (Dkt. Entry No. 4) is GRANTED and that Movant’s section 2255 is DISMISSED with prejudice. A Certificate of Appealability is DENIED. IT IS SO ORDERED. DONE at McAllen, Texas, this 13th day of June, 2017. ___________________________________ Micaela Alvarez United States District Judge 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). 2/2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?