Kelley v. USA, No. 3:2018cv00097 - Document 11 (N.D. Tex. 2021)
Court Description: Order Adopting 10 Findings and Recommendations and Denying Certificate of Appealability. (Ordered by Senior Judge Sidney A Fitzwater on 1/25/2021) (hml)
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Kelley v. USA Doc. 11 Case 3:18-cv-00097-D-BH Document 11 Filed 01/25/21 Page 1 of 2 PageID 147 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION BRIAN KELLEY, ID # 49124-177, Movant, vs. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) No. 3:18-CV-0097-D No. 3:14-CR-359-D(1) ORDER After reviewing all relevant matters of record in this case, including the findings, conclusions, and recommendation of the United States Magistrate Judge, in accordance with 28 U.S.C. § 636(b)(1), the court is of the opinion that the findings and conclusions of the magistrate judge are correct, and they are adopted as the findings and conclusions of the court. For the reasons stated in the findings, conclusions, and recommendation of the United States Magistrate Judge, movant’s motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody, received on January 16, 2018, is denied with prejudice. Considering the record in this case and pursuant to Fed. R. App. P. 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c), the court denies a certificate of appealability. The court adopts and incorporates by reference the magistrate judge’s findings, conclusions, and recommendation filed in this case in support of its finding that the movant 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). If movant files a notice of appeal, Dockets.Justia.com Case 3:18-cv-00097-D-BH Document 11 Filed 01/25/21 Page 2 of 2 PageID 148 ( ) movant may proceed in forma pauperis on appeal. (X) movant must pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis. SO ORDERED. January 25, 2021. _________________________________ SIDNEY A. FITZWATER SENIOR JUDGE
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