United States District Court, N.D. Texas, Dallas Division
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND
DENYING CERTIFICATE OF APPEALABILITY
J. BOYLE UNITED STATES DISTRICT JUDGE
the Court are Petitioner's objections to the Magistrate
Judge's Findings, Conclusions, and Recommendation. (ECF
No. 13.) The Court has made a de novo review of the
objections. For the following reasons, the objections are
OVERRULED, and the Court ACCEPTS the Findings, Conclusions
and Recommendation of the United States Magistrate Judge.
Petitioner's first two objections, he argues the Court
cannot rely on the Factual Resume to determine his claims
because his counsel was ineffective prior to drafting the
Factual Resume. In his third and fourth objections, he claims
the Magistrate Judge improperly shifted the burden of proof.
Burden of Proof
claims the Magistrate Judge improperly found that it was his
burden to show he was actually innocent and/or that he
received ineffective assistance of counsel. In a habeas
corpus proceeding, however, the petitioner bears the burden
of establishing his claims. See United States v.
Chavez, 193 F.3d 375, 378 (1999) (citing Clark v.
Collins, 19 F.3d 959, 964 (5th Cir. 1994))
(“In a habeas proceeding alleging ineffective
assistance of counsel, the petition has the burden of
proof.”); House v. Bell, 547 U.S. 518, 538
(2006) (citing Schlup v. Delo, 513 U.S. 298, 327
(1995)) (stating it is petitioner's burden to establish
his actual innocence). Petitioner has failed to show the
Magistrate Judge improperly shifted the burden of proof. His
objections are hereby OVERRULED.
Assistance of Counsel
petition, Petitioner claimed his counsel was ineffective
because counsel failed to investigate or argue that the
fraudulent wire transmissions lacked an interstate nexus. In
examining this claim, the Magistrate Judge stated:
“Petitioner admitted in his Factual Resume that the
relevant fraudulent wire transmissions, made on November 4,
2010, and January 21, 2011, initiated from computers in Texas
and went to Gmail servers outside of Texas.” (ECF No.
12 at 6.)
objects that the Factual Resume should not be considered in
determining his ineffective assistance of counsel claims
because his counsel failed to investigate or argue against
the interstate nexus before the Factual Resume was drafted.
As stated in the Findings, Conclusions, and Recommendation,
however, Petitioner has submitted no evidence that the
fraudulent transmissions were not interstate transmissions.
It is Petitioner's burden to establish that his counsel
was constitutionally ineffective. Chavez, 193 F.3d
at 378; Strickland, v. Washington, 466 U.S. 668, 687
(1984). Further, Petitioner signed the Factual Resume stating
that the facts recited therein were true and correct. (ECF
No. 27 at 9.) Petitioner's objections are hereby
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).
event, the petitioner will file a notice of appeal, the court
notes that the petitioner will need to pay the $505.00
appellate filing fee or submit a motion to proceed in