United States District Court, E.D. Texas, Lufkin Division
ORDER OVERRULING MOVANT'S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
CLARK, UNITED STATES DISTRICT JUDGE.
George Kenneth Benton, a federal prisoner, proceeding pro
se, filed this motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255.
court ordered that this matter be referred to the Honorable
Zack Hawthorn, United States Magistrate Judge, at Beaumont,
Texas, for consideration pursuant to applicable laws and
orders of this Court. The Magistrate Judge has submitted a
Report and Recommendation of United States Magistrate Judge.
The Magistrate Judge recommends denying the motion to vacate,
set aside or correct sentence.
court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record and the pleadings. Movant filed objections to the
Magistrate Judge's Report and Recommendation.
court has conducted a de novo review of the
objections in relation to the pleadings and the applicable
law. See Fed. R. Civ. P. 72(b). After careful
consideration of all the pleadings and the relevant case law,
the court concludes that movant's objections lack merit
for the reasons stated in the Magistrate Judge's Report
Nelson v. Colorado, ___ U.S.___, 137 S.Ct. 1249
(2017), movant contends he was denied due process when the
court considered relevant conduct in assessing his sentence.
In Nelson, the United States Supreme Court held that
it violated due process for the State of Colorado to require
defendants whose convictions had been invalidated to prove
their innocence by clear and convincing evidence before
refunding fees, court costs, and restitution.
Nelson, 137 S.Ct. at 1252. Because movant does not
allege that he was ordered to pay fees, court costs, or
restitution based on conduct for which he was acquitted,
Nelson has no bearing on his case. Movant argues
that the Supreme Court's holding in Nelson
prevents the sentencing court from considering relevant
conduct in assessing punishment, but Nelson does not
address the use of relevant conduct in sentencing. Further,
it is well-established that the district court may consider
any information which has sufficient indicia of reliability.
United States v. Watts, 519 U.S. 148, 156 (1997)
(holding that the sentencing court is allowed to consider
conduct underlying an acquitted charge, as long as the
conduct is proved by a preponderance of the evidence);
United States v. Ramirez, 271 F.3d 611, 612 (5th
Cir. 2001); see also United States v. Hinojosa, 749
F.3d 407, 412 (5th Cir. 2014) (noting that relevant conduct
determinations that increase the guidelines range do not have
to be found by a jury).
case, 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 Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v.
Dretke, 362 F.3d 323, 328 (5th Cir. 2004); see also
Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making
that substantial showing, 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 Slack, 529
U.S. at 483-84. If the motion was denied on procedural
grounds, movant must show that jurists of reason would find
it debatable: (1) whether the motion raises a valid claim of
the denial of a constitutional right, and (2) whether the
district court was correct in its procedural ruling.
Id. at 484; Elizalde, 362 F.3d at 328. 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 Miller v. Johnson, 200 F.3d 274,
has not shown that any of the issues raised by his claims are
subject to debate among jurists of reason, or that a
procedural ruling is incorrect. The questions presented are
not worthy of encouragement to proceed further. Therefore,
movant has failed to make a sufficient showing to merit the
issuance of a certification of appealability.
movant's objections are OVERRULED. 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. A certificate of appealability will not be