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
Carlos Manuel Boria's (“Boria”) § 2255
Motion to Vacate, Set Aside or Correct Sentence (Doc. 515)
and Memorandum of Law in Support (Doc. 516); the United
States' Response and Motion for Summary Judgment (Doc.
526); and Judge Stacy's Memorandum and Recommendation
that the Court deny the § 2255 Motion and grant the
United States' Motion for Summary Judgment. (Doc. 607).
Boria moved for an extension of time to object to the
Memorandum and Recommendation (Doc. 612), which was granted
(Doc. 614), but no objections were filed.
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. Gamez v. United
States, No. SA-06-CR-401-XR, 2014 WL 2114043, at *2
(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
or her right to appeal, a Court may presume that he or she
“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) (per curiam). There are four grounds on which a
defendant may move to vacate, set aside, or correct his or
her sentence under § 2255: (1) “the sentence was
imposed in violation of the Constitution or laws of the
United States”; (2) “the [district] court was
without jurisdiction to impose such sentence”; (3)
“the sentence 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). “A defendant can challenge [his or her]
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[ or her]
procedural default and ‘actual prejudice' resulting
from the error.” United States v. Shaid, 937
F.2d 228, 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.
under 28 U.S.C. § 2253(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 Fed. R. App. P. 22(b)(1) (“In a
habeas corpus proceeding in which the detention complained of
arises from . . . a 28 U.S.C. § 2255 proceeding, the
applicant cannot take an appeal unless a circuit justice or a
circuit or district judge issues a certificate of
appealability under 28 U.S.C. § 2253(c).”).
“[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[ or her]
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.3d 429, 431
(5th Cir. 2003), citing Slack, 529 U.S. at 484. 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) (per curiam)). Accordingly, it
the United States' Motion for Summary Judgment is
GRANTED (Doc. 526), the Movant's §