Vargas v. United States

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS ANGELICA MARIA VARGAS, § § Movant, § § versus § CIVIL ACTION NO. 1:22-CV-242 § UNITED STATES OF AMERICA, § § Respondent. § ORDER OVERRULING MOVANT’S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Movant Angelica Maria Vargas, proceeding pro se, filed this Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. The court referred this matter to the Honorable Christine L. Stetson, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The magistrate judge recommends denying the Motion to Vacate Sentence. The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record, pleadings, and all available evidence. Movant filed objections to the magistrate judge’s Report and Recommendation. The 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). Movant challenges the validity of the restitution order, but a challenge to a restitution order must be raised on direct appeal, not in a § 2255 proceeding. United States v. Segler, 37 F.3d 1131, 1135 (5th Cir. 1994). For the reasons stated in the magistrate judge’s Report and Recommendation, the objections lack merit. In addition, 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, the movant need not establish that she should prevail on the merits. Rather, she 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; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). If the motion was denied on procedural grounds, the 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. 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, 280-81 (5th Cir. 2000). Here, Movant has not shown that any of the issues raised by her claims are subject to debate among jurists of reason, or that a procedural ruling is incorrect. In addition, 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.

2 ORDER Accordingly, Movant’s objections (#15 and #16) are OVERRULED. The findings of fact and conclusions of law of the magistrate judge are correct, and the report of the magistrate judge

(#12) is ADOPTED. A certificate of appealability will not be issued. A final judgment will be entered in this case in accordance with the magistrate judge’s recommendation.