Gonzalez Hinojosa v. United States of America

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 10 MOTION to Dismiss 1 Motion to Vacate/Set Aside/Correct Sentence (2255) - McALLEN , Case terminated on 4/11/2017. A Certificate of Appealability is DENIED.(Signed by Judge Micaela Alvarez) Parties notified.(BelindaSaenz, 7)

United States District Court
Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
JESUS GONZALEZ HINOJOSA
Movant
VS.
UNITED STATES OF AMERICA
Respondent

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CIVIL ACTION NO.
CRIMINAL NO.

April 11, 2017
David J. Bradley, Clerk

M-14-940
M-11-284-2

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 March 21, 2017, the Magistrate Court issued the Report and Recommendation,
recommending that Respondent’s Motion to Dismiss (Dkt. Entry No. 10) 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.2

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As noted by the Fifth Circuit, “[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 P.72(b) advisory committee’s note (1983)) superceded by statute on other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) (The Court does note one factual inaccuracy, on page 2 – that “Movant, through counsel, timely filed his original § 2255 motion. . .”
Movant is actually proceeding pro se, as reflected later in the Report.)
2 The Court makes an additional observation. In his Reply Declaration (Dkt. No. 14), Movant contends that counsel assured him that Movant’s
prior marijuana case would only be introduced if Movant testified and that Movant was “shocked” when it was introduced on the last day of trial.
The record again belies Movant’s contention as counsel responded to the Government’s 404(b) notice by acknowledging its admissibility to show
other purposes including knowledge but arguing against admission in the response and at the pre-trial hearing on the motion in limine. Movant
was present at this hearing.

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Accordingly, it is hereby ORDERED that Respondent’s Motion to Dismiss (Dkt. Entry No.
10) 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 11th day of April, 2017.
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Micaela Alvarez
United States District Judge

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