Filed: Nov. 07, 2018
Latest Update: Nov. 07, 2018
Summary: ORDER SAM A. LINDSAY , District Judge . On September 26, 2018, United States Magistrate Judge David L. Horan entered the Amended Findings, Conclusions and Recommendation of the United States Magistrate Judge ("Report"), recommending that the court grant the Government's Motion to Dismiss (Doc. 13), filed August 27, 2018, and deny Petitioner's Motion Under 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 5) as time-barred and not equitably tolled. Petiti
Summary: ORDER SAM A. LINDSAY , District Judge . On September 26, 2018, United States Magistrate Judge David L. Horan entered the Amended Findings, Conclusions and Recommendation of the United States Magistrate Judge ("Report"), recommending that the court grant the Government's Motion to Dismiss (Doc. 13), filed August 27, 2018, and deny Petitioner's Motion Under 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 5) as time-barred and not equitably tolled. Petitio..
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ORDER
SAM A. LINDSAY, District Judge.
On September 26, 2018, United States Magistrate Judge David L. Horan entered the Amended Findings, Conclusions and Recommendation of the United States Magistrate Judge ("Report"), recommending that the court grant the Government's Motion to Dismiss (Doc. 13), filed August 27, 2018, and deny Petitioner's Motion Under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 5) as time-barred and not equitably tolled. Petitioner filed a number of objections to the Report, which were docketed on October 18, 2018. After due consideration, the court determines that the objections are without merit.
Accordingly, after carefully reviewing the motion, file, record in this case, and Report, and having conducted a de novo review of that portion of the Report to which objection was made, the court determines that the findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. The court, therefore, overrules Petitioner's objections, grants the Government's Motion to Dismiss (Doc. 13), denies Petitioner's Motion Under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 5), and dismisses with prejudice this action. Further, the clerk shall term all pending motions.
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), the court denies a certificate of appealability.* The court determines that Petitioner has failed to show: (1) that reasonable jurists would find this court's "assessment of the constitutional claims debatable or wrong;" or (2) that reasonable jurists would find "it debatable whether the petition states a valid claim of the denial of a constitutional right" and "debatable whether [this court] was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). In support of this determination, the court accepts and incorporates by reference the Report filed in this case. In the event that Petitioner files a notice of appeal, he must pay the $505 appellate filing fee or submit a motion to proceed in forma pauperis on appeal.
It is so ordered.
