Opinion
CRIMINAL ACTION NO. H-12-160 CIVIL ACTION NO. H-16-2307
12-02-2017
UNITED STATES OF AMERICA, Plaintiff-Respondent, v. WADE HAMPTON BIGELOW, Defendant-Movant.
ORDER ADOPTING RECOMMENDATION OF THE MAGISTRATE JUDGE
Pending is the Government's Motion for Summary Judgment (Document No. 348), Defendant/§ 2255 Movant Wade Hampton Bigelow's Motion for Summary Judgment (Document No. 338) and Bigelow's § 2255 Motion to Vacate, Set Aside or Correct Sentence (Document No. 331) and various supplements thereto. The Court has received from the Magistrate Judge a Memorandum and Recommendation recommending that the Government's Motion for Summary Judgment be GRANTED and that Bigelow's Motion for Summary Judgment and Motion to Vacate, Set Aside or Correct Sentence both be DENIED. Bigelow has filed Objections (Document Nos. 365 & 366) to the Memorandum and Recommendation. The Court, after having made a de novo determination of the Motions for Summary Judgment, Bigelow's § 2255 Motion, the Magistrate Judge's Memorandum and Recommendation, and Bigelow's Objections, is of the opinion that the findings and recommendations of the Magistrate Judge should be and hereby are accepted by the Court. Therefore,
It is ORDERED and ADJUDGED for the reasons set forth in the Memorandum and Recommendation of the United States Magistrate Judge entered on October 30, 2017, which is adopted in its entirety as the opinion of the Court, that the Government"s Motion for Summary Judgment (Document No. 348) is GRANTED, Bigelow's Motion for Summary Judgment (Document No. 338) is DENIED, and Bigelow's § 2255 Motion to Vacate, Set Aside or Correct Sentence (Document No. 331) is DENIED and DISMISSED WITH PREJUDICE. It is further
ORDERED that a certificate of appealability is DENIED. A certificate of appealability from a habeas corpus proceeding will not issue unless the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard "includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 120 S. Ct. 1595, 1603-1604 (2000) (internal quotations and citations omitted). Stated differently, where the claims have been dismissed on the merits, the petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. at 1604; Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir.), cert. denied, 122 S.Ct. 329 (2001). When the claims have been dismissed on procedural grounds, the petitioner must show that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 120 S. Ct. at 1604. A district court may deny a certificate of appealability sua sponte, without requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
For the reasons set forth in the Memorandum and Recommendation, which has been adopted as the opinion of the Court, the Court determines that reasonable jurists would not find debatable any of the substantive rulings made herein. Thus, a certificate of appealability is DENIED.
The Clerk will enter this Order and send copies to all parties of record.
Signed at Houston, Texas this 2nd day of December, 2017.
/s/_________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE