Aguilar-Morfin v. United States of America

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Case terminated on 5/15/2017. A Certificate of Appealability is DENIED.(Signed by Judge Randy Crane) Parties notified.(BelindaSaenz, 7)

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United States District Court Southern District of Texas ENTERED UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION JOSE LUIS AGUILAR-MORFIN Petitioner-Defendant VS. UNITED STATES OF AMERICA Respondent-Plaintiff § § § § § § May 15, 2017 David J. Bradley, Clerk CIVIL ACTION NO. M-14-978 CRIMINAL NO. M-12-1317-1 ORDER ADOPTING REPORT AND RECOMMENDATION Pending before the Court is Petitioner-Defendant’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 24, 2017, the Magistrate Court issued the Report and Recommendation, recommending that Petitioner-Defendant’s Unopposed Motion for Nonsuit be granted, and that Petitioner-Defendant’s section 2255 motion be dismissed without 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 clearly erroneous error, the Court adopts the Report and Recommendation in its entirety. Accordingly, Petitioner-Defendant’s Unopposed Motion for Nonsuit (Dkt. Entry No. 17) is GRANTED and Petitioner-Defendant’s section 2255 claims are DISMISSED without prejudice. A Certificate of Appealability is DENIED. 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 P.72(b) advisory committee=s note (1983)) superceded by statute on other grounds by 28 U.S.C. ' 636(b)(1), as stated in ACS Recovery Servs., Inc v. Griffin, No. 11-40446, 2012 WL 1071216, at *7 n.5 (5th Cir.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). SO ORDERED this 15th day of May, 2017, at McAllen, Texas. ___________________________________ Randy Crane United States District Judge 2/2

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