Opinion
CIVIL ACTION NO. 1:15cv314
11-17-2015
ROMAN PENA GARZA v. UNITED STATES OF AMERICA
MEMORANDUM OPINION AND ORDER
Movant Roman Pena Garza, a federal prisoner, proceeding pro se, brought this motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. On November 2, 2015, movant filed a motion to withdraw his motion to vacate.
Movant is entitled to dismiss the case prior to the service of an answer or a motion for summary judgment. FED. R. CIV. P. 41(a)(1). In this case, the opposing party has filed neither an answer nor a motion for summary judgment. Accordingly, movant's motion to dismiss the action should be granted.
Furthermore, 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 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. 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.), cert. denied, 531 U.S. 849 (2000).
Here, movant has not shown that any of the issues raised by his claims are subject to debate among jurists of reason. The factual and legal questions advanced by the movant are not novel and have been consistently resolved adversely to his position. 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 certificate of appealability. Accordingly, a certificate of appealability shall not be issued.
ORDER
Accordingly, it is ORDERED that movant's motion to dismiss is GRANTED. A final judgment will be entered in this case in accordance with this order.
SIGNED this the 17 day of November, 2015.
/s/_________
Thad Heartfield
United States District Judge