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)

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

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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

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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).

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