United States District Court, S.D. Texas, Houston Division
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
MEMORANDUM AND RECOMMENDATION
MELINDA HARMON UNITED STATES DISTRICT JUDGE.
before the Court in the above referenced proceeding is Movant
Clifford Roy Tatum's § 2255 Motion to Vacate, Set
Aside or Correct Sentence (Document No. 116); the United
States' Motion for Summary Dismissal (Document No. 121);
and Judge Stacy's Memorandum and Recommendation that the
Court deny the § 2255 Motion and grant the United
States' Motion for Summary Dismissal. (Document No. 124).
No objections were filed to the Memorandum and
no party objects to the Magistrate Judge's Memorandum and
recommendation, the Court is not required to perform a de
novo review of the Magistrate Judge's determination,
but need only review it to decide whether it is clearly
erroneous or contrary to law. Gomez v. United
States, 2014 WL 2114043, at *3 (W.D. Tex. May 20, 2014)
(citing United States v. Wilson, 864 F.2d 1219, 1221
(5th Cir. 1989)). Once a defendant has been convicted and has
exhausted or waived his right to appeal, a Court may presume
that he “stands fairly and finally convicted.”
United States v. Willis, 273 F.3d 592, 595 (5th Cir.
2001). Therefore relief under § 2255 is limited to
“transgressions of constitutional rights and for a
narrow range of injuries that could not have been raised on
direct appeal and would, if condoned, result in a complete
miscarriage of justice.” United States v.
Gaudet, 81 F.3d 585, 589 (5th Cir. 1996). The
court's ability to reduce or modify a sentence of
imprisonment once it has been imposed is restricted.
United States v. Lopez, 26 F.3d 512, 515 (5th Cir.
1994). There are four grounds on which a defendant may move
to vacate, set aside, or correct his sentence under §
2255: (1) his sentence was imposed in violation of the
Constitution or laws of the United States; (2) the district
court lacked jurisdiction to impose the sentence; (3) the
sentence imposed was in excess of the maximum authorized by
law; and (4) the sentence was otherwise subject to collateral
attack. 28 U.S.C. § 2255. “A defendant can
challenge his conviction after it is presumed final only on
issues of constitutional or jurisdictional magnitude . . .
and may not raise an issue for the first time on collateral
review without showing both ‘cause' for his
procedural default and ‘actual prejudice' resulting
from the error.” United States v. Shaid, 937
F.3d 338, 232 (5th Cir. 1991) (citations omitted).
Court has carefully reviewed the filings, the Magistrate
Judge's Memorandum and Recommendation, and the applicable
law and finds the Memorandum and Recommendation is not
erroneous in its factual findings nor contrary to law.
Accordingly, the Court hereby adopts the Magistrate
Judge's Memorandum and Recommendation as its own.
28 U.S.C. § 2255(c)(1)(B), “Unless a circuit
justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from . . .
the final order in a proceeding under section 2255.”
See also Federal Rule of Appellate procedure
22(b)(1) (“If an applicant files a notice of appeal,
the district judge who rendered the judgment must either
issue a certificate of appealability or state why a
certificate should not issue.”).
“[a] certificate of appealability may issue . . . only
if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the
district court's resolution of his constitutional claims
or that jurists could conclude the issue presented are
adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003),
citing Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Where the district court denies a § 2255 motion on the
merits, to warrant an certificate of appealability a Movant
must be able to show that “reasonable jurists would
find the district court's assessment of the
constitutional claims debatable or wrong.” Henry v.
Cockrell, 327 F.23 429, 431 (5th Cir. 2003). A district
court may deny a certificate of appealability sua sponte.
Haynes v. Quarterman, 526 F.3d 189, 193 (5th Cir. 2008)
(citing Alexander v. Johnson, 211 F.3d 895, 898 (5th
Cir. 2000)). The Court finds that Movant has failed to make
such a showing here. Accordingly, it is hereby
that the United States' Motion for Summary Dismissal is
GRANTED, the ...