Luna v. United States

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION RICKY LUNA, Petitioner, v. 2:23-CV-015-Z-BR UNITED STATES OF AMERICA, Respondent.

ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION Before the Court are the findings, conclusions, and recommendation (ECF No. 8) (“FCR”) of the United States Magistrate Judge to deny Petitioner’s motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 by a person in federal custody (ECF No. 2) (“Motion”). 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 is correct. It is therefore ORDERED that the FCR of the Magistrate Judge is ADOPTED, and Petitioner’s Motion is DENIED. Additionally, the Court DENIES a certificate of appealability (‘COA”).! A district court may deny a COA sua sponte and without requiring further briefing or argument. See Alexander v. Johnson, 211 F.3d 895, 898 (Sth Cir. 2000). Considering 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), and ADOPTING and INCORPORATING the Magistrate

' Because the Motion to Vacate is governed by the Antiterrorism and Effective Death Penalty Act, codified as amended at 28 U.S.C. § 2253, aCOA is a “jurisdictional prerequisite” before an appeal may proceed. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citing 28 U.S.C. § 2253(c)(1)); Hallmark v. Johnson, 118 F.3d 1073, 1076 (Sth Cir. 1997) (noting §§ 2254 and 2255 actions require a COA).

Judge’s FCR, the Court finds that Petitioner has failed to show that reasonable jurists would find “it debatable whether the petition states a valid claim of the denial of a constitutional right” or “debatable whether [this Court] was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). All other relief not expressly granted herein is DENIED. IT IS SO ORDERED. October 5 «2023 3 THEW J. KACSMARYK UNITED STATES DISTRICT JUDGE