Opinion
CIVIL ACTION NO. H-09-1351 CRIMINAL ACTION NO. H-06-335
10-05-2011
UNITED STATES OF AMERICA, Plaintiff-Respondent, v. MICHAEL ORJI-NWOSU, Defendant-Movant.
ORDER ADOPTING THE PROPOSED FINDINGS OF FACT AND CONCLUSIONS
OF LAW, AND THE RECOMMENDATION OF THE MAGISTRATE JUDGE
This case was referred to the Magistrate Judge for an evidentiary hearing on Movant Michael OrjiO-Nwosu's claim(s) that his attorneys failed to communicate a plea offer to him and/or were otherwise ineffective in not advising him to plead guilty. An evidentiary hearing was held before the Magistrate Judge on November 15, 2010, December 9, 2010, and January 20, 2011. The Court has received from the Magistrate Judge Proposed Findings of Fact and Conclusions of Law, and Recommendation that All Relief be Denied on Nwosu's § 2255 Motion to Vacate, Set Aside or Correct Sentence. (Document No. 125). Orji-Nwosu has filed objections to the Magistrate's Proposed Findings of Fact and Conclusions of Law and Recommendation (Document No. 22 in Civil Action No. H-09-1351). The Court, after having made a de novo determination of Orji-Nwosu's claims and the evidence received at the evidentiary hearing is of the opinion that the findings and recommendations of the Magistrate Judge are correct and should be and hereby are accepted by the Court in their entirety. Accordingly,
It is ORDERED and ADJUDGED for the reasons set forth in the Magistrate Judge's Proposed Findings of Fact and Conclusions of Law, and Recommendation that All Relief be Denied on Movant's § 2255 Motion to Vacate, Set Aside or Correct Sentence, filed on February 15, 2 011, which is adopted in its entirety as the opinion of this Court, that all relief on Movant Michael Orji-Nwosu's § 2255 Motion to Vacate, Set Aside or Correct Sentence and Supplemental § 2255 Motion (Document Nos. 87 & 95) is DENIED. 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; Beaslev 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 Proposed Findings of Fact and Conclusions of Law and Recommendation that All Relief be Denied on Nwosu's § 2255 Motion to Vacate, Set Aside or Correct Sentence, the Court determines that reasonable jurists would not debate the correctness of the findings or conclusions contained therein.
The Clerk will enter this Order and send copies to all parties of record.
Signed at Houston, Texas this 5th day of October 2011.
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE