Rodriguez v. USA, No. 2:2023cv00076 - Document 12 (N.D. Tex. 2023)
Court Description: ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION and Denying Certificate of Appealability re: 8 Findings and Recommendations on Case re: 2 Motion to Vacate under 28 U.S.C. 2255 filed by Ricardo Rodriguez. (Ordered by Judge Matthew J. Kacsmaryk on 9/25/2023) (djs)
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Rodriguez v. USA Doc. 12 Case 2:23-cv-00076-Z-BR Document 12 Filed 09/25/23 Page 1 of 2 PageID 61 N THE LTNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION RICARDO RODRIGIJE,Z, Petitioner, 2:23-CV -07 6-Z-BR V LINITED STATES OF AMERICA, Respondent. ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION Before the Court are the findings, conclusions, and recommendation of the United States Magistrate Judge to dismiss the 28 U.S.C. g 2255 Motion to Vacate filed by Petitioner. ECF No. 8. Objections to the findings, conclusions, and recommendation have been filed. ECF No. 1 l. After making an independent review of the pleadings, files, records, and objections in this case, the Court concludes that the findings, conclusions, and recommendation of the Magistrate Judge are correct. It is therefore ORDERED that the findings, conclusions, and recommendation of the Magistrate Judge are ADOPTED and the case is DISMISSED. Additionally, the Court DENIES a certificate of appealability ("COA").r A district court may deny a COA sua sponte and without requiring funher briefing or argument. See Alexander v. Johnson,2l I F.3d 895, 898 (5th Cir. 2000). Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule l1(a) of the Rules Governing $$ 2254 and2255 proceedings, and 28 U.S.C. $ 2253(c), and ADOPTING and INCORPORATING the Magistrate I Because the Motion to Vacate is governed by the Antiterrorism and Effective Death Penalty Act, codified as amended at 28 U.S.C. 5 2253, a COA is a'Jurisdictional prerequisite" before an appeal may proceed. Miller-El v. Cockrell,537 U.5.322,336 (2003) (citing 28 U.S.C. $2253(c)(l)); Hallmarkv. Johnson,ll8 F.3d 1073, 1076 (5th Cir. 1997) (noting SS 2254 and2255 actions require a COA). Dockets.Justia.com Case 2:23-cv-00076-Z-BR Document 12 Filed 09/25/23 Page 2 of 2 PageID 62 Judge's FCR, the Court finds that Plaintiff has failed to show that reasonable jurists would find debatable whether the petition states a valid claim "it of the denial of a constitutional right" or "debatable whether [this Court] was correct in its procedural ruling. Slack v. McDaniel,529 U.S. 473,484 (2000). IT IS SO ORDERED. September Z6n --__ KACSMARYK STATES DISTRICT JIJDGE J. 2
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