Opinion
2:21-CV-129-Z
09-12-2023
RAFAEL JIMINEZ VASQUEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION
MATTHEW J. KACSMARYK UNITED STATES DISTRICT JUDGE
Before the Court are the findings, conclusions, and recommendation of the United States Magistrate Judge to dismiss the 28 U.S.C. § 2255 Motion to Vacate filed by Petitioner. ECF No. 9. No objections to the findings, conclusions, and recommendation have been filed. After making an independent review of the pleadings, files, and records in this case, the Court concludes that the findings, conclusions, and recommendation of the Magistrate Judge are correct. It is therefore ORDERED that the findings, conclusions, and recommendation of the Magistrate Judge are ADOPTED and the case is DISMISSED
Additionally, the Court DENTES a certificate of appealability ("COA"). A district court may deny a COA sua sponte and without requiring further briefing or argument. See Alexander v. Johnson. 211 F.3d 895, 898 (5th Cir. 2000). Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b). Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c). and ADOPTING and INCORPORATING the Magistrate Judge's FCR, the Court finds that Plaintiff has failed to show that reasonable jurists would find "it debatable whether the petition states a valid claim of the denial of a constitutional right” or "debatable whether [this Court) was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473.484(2000).
Because the Motion to Vacate is governed by the Antiterrorism and Effective Death Penalty Act, codified as amended at 28 U.S.C. § 2253, a COA is a "jurisdictional prerequisite" before an appeal may proceed. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citing 28 U.S.C. § 2253(c)(1)); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997) (noting §§ 2254 and 2255 actions require a COA).
IT IS SO ORDERED