Opinion
Criminal Case No. 5:12-cr-28-JMH-HAI Criminal Case No. 5:13-cv-07309-JMH-HAI
12-30-2014
UNITED STATES OF AMERICA, Plaintiff, v. JOSE ELIGIO PINEDA-PARADA, Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon the Report and Recommendation of Magistrate Judge Hanly A. Ingram. [DE 75]. Said action was referred to the magistrate for the purpose of reviewing the merit of Defendant Pineda-Parada's Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255, [DE 46], to which the United States filed a response, stating its objections thereto [DE 65]. Defendant filed a Reply in further support of his Motion [DE 74].
In his Report and Recommendation, the Magistrate Judge concludes that Defendant fails to establish deficient performance on his claims of ineffective assistance of counsel, that the remaining grounds are procedurally defaulted for Defendant's failure to raise them in his direct appeal, and that an evidentiary hearing is unnecessary. Therefore, the Magistrate Judge recommends that Pineda-Parada's motion to vacate be denied.
The Magistrate Judge's Report and Recommendation, [DE 75], was filed on October 29, 2014. Finding the Defendant had been transferred to Eden, Texas, the Clerk forwarded the Report and Recommendation to the Defendant on November 17, 2014. The Magistrate Judge's Report and Recommendation advised Defendant that objections to the same were due within fourteen days or further appeal would be waived. That time has now expired, and Defendant has filed no objections.
Generally, "a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge." 28 U.S.C. § 636. However, when the petitioner fails to file any objections to the Report and Recommendation, as in the case sub judice, "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 150 (1985). Consequently and in the absence of any objections from Defendant Pineda-Parada, this Court adopts the well-articulated and detailed reasoning set forth in the Report and Recommendation as its own.
Further, no certificate of appealability shall issue in this matter. "A certificate of appealability may issue .... only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order for a certificate to issue, Petitioner must be able to show that reasonable jurists could find in his favor, and the "question is the debatability of the underlying federal constitutional claim, not the resolution of that debate." Miller-El v. Cockrell, 537 U.S. 322, 325 (2003). Having carefully considered the matter, this Court concludes that no certificate should issue as Coleman cannot make a substantial showing of the denial of a constitutional right.
Accordingly, IT IS ORDERED:
(1) that the Report and Recommendation of Magistrate Judge Hanly A. Ingram [DE 75] is ACCEPTED and ADOPTED;
(2) that Pineda-Parada's Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255, [DE 46], is DENIED;
(3) that no certificate of appealability will issue.
This the 30th day of December, 2014.
Signed By:
Joseph M. Hood
Senior U.S. District Judge