Vasquez-Lara v. USA, No. 3:2012cv02744 - Document 6 (N.D. Tex. 2012)
Court Description: Order Accepting 3 Findings and Recommendations and Denying Certificate of Appealability. Vasquez-Lara's Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is denied and dismissed without prejudice. (Ordered by Judge Sam A Lindsay on 10/31/2012) (ykp)
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Vasquez-Lara v. USA Doc. 6 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION DAVID VASQUEZ-LARA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. § § § § § § § § Civil Action No. 3:12-CV-2744-L (BH) Criminal No. 3:11-CR-0119-L ORDER Before the court is the Memorandum of Points and Authorities in Support of Motion Pursuant to § 2255, filed by David Vasquez-Lara (“Vasquez-Lara” or “Petitioner”) on June 22, 2010, which this court liberally construes as a motion to vacate under 28 U.S.C. § 2255. The case was referred to Magistrate Judge Irma C. Ramirez, who entered Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on August 14, 2012, recommending that the motion be denied. No objections to the Report were filed. Having reviewed the pleadings, file, and record in this case, and the findings and conclusions of the magistrate judge, the court determines that the findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. Accordingly, Vasquez-Lara’s Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is denied and dismissed without prejudice. Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c), Order – Page 1 Dockets.Justia.com the court denies a certificate of appealability.* The court determines that Petitioner has failed to show: (1) that reasonable jurists would find this court’s “assessment of the constitutional claims debatable or wrong;” or (2) that reasonable jurists would find “it debatable whether the petition states a valid claim of the denial of a constitutional right” and “debatable whether [this court] was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In support of this determination, the court accepts and incorporates by reference the magistrate judge’s report filed in this case. In the event that Petitioner files a notice of appeal, he must pay the $455 appellate filing fee or submit a motion to proceed in forma pauperis (“IFP”), unless he has been granted IFP status by the district court. It is so ordered this 31st day of October, 2012. _________________________________ Sam A. Lindsay United States District Judge * Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows: (a) Certificate of Appealability. The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue. If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. A motion to reconsider a denial does not extend the time to appeal. (b) Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to appeal an order entered under these rules. A timely notice of appeal must be filed even if the district court issues a certificate of appealability. Order – Page 2
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