Gresham v. United States of America, No. 4:2014cv00470 - Document 4 (N.D. Tex. 2014)
Court Description: Order: Habeas corpus petition is successive, and the clerk is directed to transfer the matter to the Fifth Circuit Court of Appeals. (Fifth Circuit notified via copy of the Notice of Electronic Filing.) Order Accepting Findings and Recommendations re: 3 Findings and Recommendations on Case re: 1 Motion to Vacate under 28 U.S.C. 2255,, filed by Roger Eugene Gresham. Magistrate Judge Jeffrey L Cureton no longer assigned to case. (Ordered by Judge Sam A Lindsay on 9/10/2014) (mem)
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Gresham v. United States of America Doc. 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ROGER EUGENE GRESHAM, Petitioner, v. UNITED STATES OF AMERICA, Respondent. § § § § § § § § § Civil Action No. 4:14-CV-470-L Criminal Case No. 4:96-CR-36-L(01) ORDER This case was referred to Magistrate Judge Jeffrey L. Cureton, who entered Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on August 7, 2014, recommending that Petitioner’s June 19, 2014 Motion to Vacate Sentence (Doc. 1), brought pursuant to 28 U.S.C. § 2255, be construed as a successive motion and transferred to the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”) for consideration. No objections to the Report were received as of the date of this order. After reviewing the pleadings, file, record in this case, and Report, the court determines that the findings and conclusions of the magistrate judge are correct and accepts them as those of the court. This court lacks jurisdiction to hear this action unless the Fifth Circuit grants leave for Petitioner to file a successive petition. Accordingly, the court directs the clerk of the court to transfer Petitioner’s section 2255 Motion to Vacate Sentence (Doc. 1) to the Fifth Circuit for consideration. 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 $505 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 10th day of September, 2014. _________________________________ 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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