Holmes v. United States
1:13-cv-00607
E.D. Tex.
Jul 20, 2017
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BRIAN HOLMES v. UNITED STATES OF AMERICA

CIVIL ACTION NO. 1:13-CV-607

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS

July 20, 2017

MARCIA A. CRONE, UNITED STATES DISTRICT JUDGE

Case 1:13-cv-00607-MAC-KFG Document 28 Filed 07/20/17 PageID #: 318

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE‘S REPORT AND RECOMMENDATION

Movant Brian Holmes, a federal prisoner, brought this motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.

The court referred this matter to the Honorable Keith F. Giblin, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The magistrate judge recommends the motion be denied.

The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record, pleadings and all available evidence. No objections to the Report and Recommendation of United States Magistrate Judge were filed by the parties.

Furthermore, the movant is not entitled to the issuance of a certificate of appealability. An appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard for granting a certificate of appealability, like that for granting a certificate of probable cause to appeal under prior law, requires the movant to make a substantial showing of the denial of a federal constitutional right. See ; ; see also . In making that substantial showing, the movant need not establish that he should prevail on the merits. Rather, he must demonstrate that the issues are subject to debate among jurists of reason, that a court could resolve the issues in a different manner, or that the questions presented are worthy of encouragement to proceed further. See . Any doubt regarding whether to grant a certificate of appealability is resolved in favor of the movant, and the severity of the penalty may be considered in making this determination. See , cert. denied, .

Here, the movant has not shown that any of the issues raised by his claims are subject to debate among jurists of reason. The factual and legal questions advanced by the movant are not novel and have been consistently resolved adversely to his position. In addition, the questions presented are not worthy of encouragement to proceed further. Thus, the movant has failed to make a sufficient showing to merit the issuance of a certificate of appealability. Therefore, a certificate of appealability shall not be issued.

O R D E R

Accordingly, the findings of fact and conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge‘s recommendation.

So ORDERED and SIGNED this 20th day of July, 2017.

MARCIA A. CRONE

UNITED STATES DISTRICT JUDGE

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