Opinion
CIVIL ACTION NO. 6:14cv550 CRIM. NO. 6:06CR00027-003
01-06-2015
JOSE ZAVALA, #12838-078 v. UNITED STATES OF AMERICA
ORDER OF DISMISSAL
Movant Jose Zavala, a prisoner confined at U.S.P. Hazelton, filed the above-styled and numbered successive motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. The cause of action was referred to United States Magistrate Judge K. Nicole Mitchell, who issued a Report and Recommendation concluding that the motion should be dismissed as time-barred. Zavala has filed objections.
The Report of the Magistrate Judge, which contains her proposed findings of fact and recommendations for the disposition of such action, has been presented for consideration, and having made a de novo review of the objections raised by Zavala to the Report, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and the objections by Zavala are without merit. It is noted that Zavala is seeking relief based on Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151 (2013). Alleyne, however, does not provide a basis for relief in this proceeding. In re Kemper, 735 F.3d 211, 212 (5th Cir. 2013) (The "Supreme Court did not declare that Alleyne applies retroactively on collateral review."). See also Fox v. United States, No. 6:13cv622, 2014 WL 2199995 (E.D. Tex. May 27, 2014). Therefore, the Court hereby adopts the findings and conclusions of the Magistrate Judge as the findings and conclusions of the Court. It is accordingly
ORDERED that the Government's motion to dismiss (docket entry #6) is GRANTED. It is further
ORDERED that Zavala's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED and the case is DISMISSED with prejudice. It is further
ORDERED that a certificate of appealability is DENIED. It is finally
ORDERED that all motions not previously ruled on are hereby DENIED.
So ORDERED and SIGNED this 6th day of January, 2015.
/s/_________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE