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Branch v. United States

United States District Court, Fifth Circuit

December 20, 2013

DWIGHT ROMARO BRANCH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER ACCEPTING AMENDED FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND DENYING A CERTIFICATE OF APPEALABILITY

A. JOE FISH, Senior District Judge.

The United States Magistrate Judge made findings, conclusions, and a recommendation in this case. An objection was filed by petitioner. The district court reviewed de novo those portions of the proposed findings, conclusions, and recommendation to which objection was made, and reviewed the remaining proposed findings, conclusions, and recommendation for plain error. Finding no error, the court ACCEPTS the amended findings, conclusions, and recommendation of the United States Magistrate Judge.

Petitioner's motion to vacate, set aside, or correct sentence is therefore DISMISSED with prejudice because it is barred by limitations. Petitioner's motion to file an out of time Section 2255 motion (docket entry 2) is DENIED.

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), 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 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 the event the petitioner will file a notice of appeal, the court notes that:

() the petitioner will proceed in forma pauperis on appeal. (X) the petitioner will need to pay the appellate filing fee or submit a ...

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