Opinion
CIVIL ACTION NO. M-15-267 CRIMINAL NO. M-11-805-1
12-04-2017
EMANUEL HERNANDEZ-HERNANDEZ Movant v. UNITED STATES OF AMERICA Respondent
ORDER ADOPTING REPORT AND RECOMMENDATION
Pending before the Court is Movant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, which motion had been referred to the Magistrate Court for a report and recommendation. On October 11, 2017, the Magistrate Court issued the Report and Recommendation, recommending that Movant's section 2255 motion be dismissed without prejudice as moot, that Respondent's Motion to Dismiss be dismissed without prejudice, and that a Certificate of Appealability be denied upon the issuance of this Court's final order. The time for filing objections has passed, and no objections have been filed.
Pursuant to Federal Rule of Civil Procedure 72(b), the Court has reviewed the Report and Recommendation for clear error. Finding no clear error, the Court adopts the Report and Recommendation in its entirety. Accordingly, Movant's section 2255 motion is DISMISSED without prejudice as moot, Respondent's Motion to Dismiss (Dkt. Entry No. 5) is DISMISSED without prejudice. A Certificate of Appealability is DENIED.
As noted by the Fifth Circuit, "[t]he advisory committee's note to Rule 72(b) states that, '[w]hen no timely objection is filed, the [district] court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Douglas v. United Services Auto. Ass'n, 79 F.3d 1415, 1420 (5th Cir. 1996)(quoting Fed. R. Civ. P.72(b) advisory committee's note (1983)) superceded by statute on other grounds by 28 U.S.C. § 636(b)(1), as stated in ACS Recovery Servs., Inc v. Griffin, No. 11-40446, 2012 WL 1071216, at *7 n.5 (5th Cir. April 2, 2012). --------
SO ORDERED this 4th day of December, 2017, at McAllen, Texas.
/s/_________
Randy Crane
United States District Judge