Hernandez-Hernandez v. United States of America

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 5 MOTION to Dismiss 1 Motion to Vacate/Set Aside/Correct Sentence (2255) - McALLEN (Signed by Judge Randy Crane) Parties notified.(cvillegas, 7)

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United States District Court Southern District of Texas ENTERED UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION EMANUEL HERNANDEZHERNANDEZ Movant VS. UNITED STATES OF AMERICA Respondent § § § § § § § December 04, 2017 David J. Bradley, Clerk CIVIL ACTION NO. M-15-267 CRIMINAL NO. M-11-805-1 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 October 11, 2017, the Magistrate Court issued the Report and Recommendation, recommending that Movant’s section 2255 motion be dismissed without prejudice as moot, that Respondent’s Motion to Dismiss 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 clear error, the Court adopts the Report and Recommendation in its entirety. Accordingly, Movant’s section 2255 motion is DISMISSED without prejudice as moot, Respondent’s Motion to Dismiss (Dkt. Entry No. 5) is DISMISSED 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 P.72(b) advisory committee=s note (1983)) superceded by statute on other grounds by 28 U.S.C. ' 636(b)(1), as stated in ACS Recovery Servs., Inc v. Griffin, No. 11-40446, 2012 WL 1071216, at *7 n.5 (5th Cir.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). 1/2 without prejudice. A Certificate of Appealability is DENIED. SO ORDERED this 4th day of December, 2017, at McAllen, Texas. ___________________________________ Randy Crane United States District Judge 2/2

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