Martin v. U.S.

Full title: JIMMY DALE MARTIN, Movant, v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, E.D. Texas

Date published: Jul 25, 2006

Civil Action No. 1:06-CV-29 (E.D. Tex. Jul. 25, 2006)

Opinion

Civil Action No. 1:06-CV-29.

July 25, 2006

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

MARCIA CRONE, District Judge

Jimmy Dale Martin, proceeding pro se, filed this motion to vacate, set aside or correct judgment pursuant to 28 U.S.C. § 2255.

The court referred this matter to the Honorable Earl S. Hines, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The magistrate judge has submitted a Report and Recommendation of United States Magistrate Judge concerning this motion to vacate. The magistrate judge recommends the motion to vacate be denied.

The court has received the Report and Recommendation of United States Magistrate Judge, along with the record, pleadings, and all available evidence. Movant filed objections to the Report and Recommendation.

The court has conducted a de novo review of the objections in relation to the pleadings and the applicable law. After careful consideration, the court concludes the objections are without merit.¹

1 The magistrate judge correctly concluded that Apprendi v. New Jersey, 530 U.S. 466 (2000), a case relied on by Movant in support of his request for relief, does not apply retroactively to cases on collateral review. In his objections, Movant also cited Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005), two cases not cited in his motion to vacate. However, the Blakely/Booker line of cases, like Apprendi, do not apply retroactively to cases on collateral review. United States v. Genty, 432 F.3d 600, 605 (5th Cir. 2005).

ORDER

Accordingly, movant's objections to the Report and Recommendation are OVERRULED. The findings of fact and conclusions of law of the magistrate judge are correct and the report of the magistrate judge is ADOPTED. A final judgment will be entered denying the motion to vacate.

In addition, the court is of the opinion movant is not entitled to a certificate of appealability. An appeal from a judgment denying post-conviction collateral relief may not proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard for a certificate of appealability 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). To make a substantial showing, the movant need not establish that he would 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 should be 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).

In this case, the movant has not shown that the issue of whether his claims are meritorious is subject to debate among jurists of reason. The factual and legal questions raised by Movant have been consistently resolved adversely to his position and the questions presented are not worthy of encouragement to proceed further. As a result, a certificate of appealability shall not issue in this matter.