Opinion
No. 3:18-CV-0097-D No. 3:14-CR-359-D(1)
01-25-2021
BRIAN KELLEY, ID # 49124-177, Movant, v. UNITED STATES OF AMERICA, Respondent.
ORDER
After reviewing all relevant matters of record in this case, including the findings, conclusions, and recommendation of the United States Magistrate Judge, in accordance with 28 U.S.C. § 636(b)(1), the court is of the opinion that the findings and conclusions of the magistrate judge are correct, and they are adopted as the findings and conclusions of the court. For the reasons stated in the findings, conclusions, and recommendation of the United States Magistrate Judge, movant's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody, received on January 16, 2018, is denied with prejudice.
Considering the record in this case and pursuant to Fed. R. App. P. 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c), the court denies a certificate of appealability. The court adopts and incorporates by reference the magistrate judge's findings, conclusions, and recommendation filed in this case in support of its finding that the movant has failed to show (1) that reasonable jurists would find this court's "assessment of the constitutional claims debatable or wrong," or (2) that reasonable jurists would find "it debatable whether the petition states a valid claim of the denial of a constitutional right" and "debatable whether [this court] was correct in its procedural ruling." Slack v. McDaniel, 529 U.S.473, 484 (2000).
If movant files a notice of appeal,
( ) movant may proceed in forma pauperis on appeal.
(X) movant must pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis.
SO ORDERED.
January 25, 2021.
/s/_________
SIDNEY A. FITZWATER
SENIOR JUDGE