Alcorta v. USA, No. 2:2023cv00034 - Document 31 (N.D. Tex. 2024)
Court Description: ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION and Denying Certificate of Appealability re: 24 Findings and Recommendations on Case re: 2 Motion to Vacate under 28 U.S.C. 2255, filed by Luis Gonzales Alcorta. (Ordered by Judge Matthew J. Kacsmaryk on 1/18/2024) (nht)
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Alcorta v. USA Doc. 31 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMAzuLLO DIVISION LUIS GONZALEZ ALCORTA Petitioner, 2:23-CY-034-Z-RR v UNITED STATES OF AMERICA Respondent. ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION Before the Court are the findings, conclusions, and recommendation of the United States Magistrate Judge to dismiss the 28 U.S.C. g 2255 Motion to Vacate filed by Petitioner ("FCR") (ECF No. 24). No objections to the FCR have been filed. After making an independent review of the pleadings, files, and records in this case, the Court concludes that the FCR of the Magistrate Judge are correct. It is therefore ORDERED that the findings, conclusions, and recommendation of the Magistrate Judge are ADOPTED and the case is DISMISSED. Additionally, the Court DENIES a certificate of appealability ("COA").r A district court may deny a COA sua sponte and without requiring further briefing or argument. Alexander v. Johnson,2ll F.3d 895, 898 (5th Cir.2000). Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule I l(a) of the Rules Governing Sections 2254 and 2255 proceedings, and 28 U.S.C. $ 2253(c), and ADOPTING and INCORPORATING the Magistrate Judge's FCR, the Court finds that Plaintiff has failed to show that reasonable jurists I Because the Motion to Vacate is governed by the Antiterrorism and Effective Death Penalty Act, codified as amended at 28 U.S.C. S 2253, a COA is a "jurisdictional prerequisite" before an appeal may proceed . Miller-El v. Cockrell,537 LJ.5.322,336(2003)(citing28U.S.C.$2253(c)(l))iHallmarkv.Johnson,llSF.3d 1073,10'16 (5thCir. 1997) (noting that Sections 2254 and 2255 actions require a COA). Dockets.Justia.com would find "it debatable whether the petition states a valid claim of the denial of a constitutional right" or "debatable whether [this Coun] was correct in its procedural ruling." Slack v. McDaniel, s29 U.S. 473,484 (2000). SO ORDERED. January b,roro W J. KACSMARYK UNITED STATES DISTRICT JUDGE 2
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