PORTER v. U.S.

Civil Action No. 1:16-CV-465.

RONELLE PORTER, Movant, v. UNITED STATES OF AMERICA, Respondent.

United States District Court, E.D. Texas.

Editors Note
Applicable Law: 28 U.S.C. § 2255
Cause: 28 U.S.C. § 2255 Motion to Vacate / Correct Illegal Sentence
Nature of Suit: 510 Prisoner: Vacate Sentence
Source: PACER


Attorney(s) appearing for the Case

Ronelle Porter, Petitioner, Pro Se.

USA, Respondent, represented by John Albert Craft , U S Attorney's Office.


MEMORANDUM ORDER OVERRULING MOVANT'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

MARCIA A. CRONE, District Judge.

Movant Ronelle Porter, a federal prisoner, proceeding pro se, filed this motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.

The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The magistrate judge has submitted a Report and Recommendation of United States Magistrate Judge. The magistrate judge recommends dismissing the motion without prejudice.

The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record, pleadings, and all available evidence. Movant filed objections to the magistrate judge's Report and Recommendation.

The court has conducted a de novo review of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes the objections are without merit. First, movant's claim that he should be resentenced in light of Amendment 794 to the Sentencing Guidelines is not cognizable in a § 2255 motion. Next, movant erroneously claims that he did not waive his right to appeal guideline determinations in his plea agreement. In fact, the record reflects that movant did not reserve his right to appeal guideline determinations. Finally, even if movant had not waived his right to appeal guidelines determinations, he is not entitled to relief. The plea agreement called for a stipulated sentence of seventy months, which took into account the anticipated two-point reduction in the then-pending amendments to the Sentencing Guidelines.

In addition, movant is not entitled to the issuance of a certificate of appealability. An appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard for granting a certificate of appealability, like that for granting a certificate of probable cause to appeal under prior law, requires the movant to make a substantial showing of the denial of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that substantial showing, the movant need not establish that he should prevail on the merits. Rather, he must demonstrate that the issues are subject to debate among jurists of reason, that a court could resolve the issues in a different manner, or that the questions presented are worthy of encouragement to proceed further. See Slack, 529 U.S. at 483-84; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). If the motion was denied on procedural grounds, the movant must show that jurists of reason would find it debatable: (1) whether the motion raises a valid claim of the denial of a constitutional right, and (2) whether the district court was correct in its procedural ruling. Elizalde, 362 F.3d at 328. Any doubt regarding whether to grant a certificate of appealability is resolved in favor of the movant, and the severity of the penalty may be considered in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir. 2000).

Here, the movant has not shown that any of the issues raised by his claims are subject to debate among jurists of reason, or that a procedural ruling is incorrect. In addition, the questions presented are not worthy of encouragement to proceed further. Therefore, the movant has failed to make a sufficient showing to merit the issuance of a certification of appealability.

ORDER

Accordingly, movant's objections (#4) are OVERRULED. The findings of fact and conclusions of law of the magistrate judge are correct, and the report of the magistrate judge (#3) is ADOPTED. A certificate of appealability will not be issued. A final judgment will be entered in this case in accordance with the magistrate judge's recommendation.


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