Mims v. United States Mims v. United States (E. D. Tex., 2014)

Copy Citation

BRENDA GAY MIMS v. UNITED STATES OF AMERICA

CIVIL ACTION NO. 9: 13cv239

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION

So ORDERED and SIGNED: April 16, 2014

        Brenda Gay Mims, an inmate confined within the Bureau of Prisons, proceeding pro se, filed the above-styled motion to vacate, set aside or correct sentence. The court referred the matter to the Honorable Zack Hawthorn, United States Magistrate Judge, for consideration pursuant to applicable orders of this court.

        The Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge concerning this case. The Magistrate Judge recommends the motion to vacate, set aside or correct sentence be dismissed without prejudice as successive.

        The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record and pleadings. No objections were filed to the Report and Recommendation.

        Accordingly, the proposed findings of fact and conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is ADOPTED. A final judgment will be entered dismissing this motion to vacate, set aside or correct sentence.

        In addition, the movant is not entitled to the issuance of a certificate of appealability. An appeal from a judgment denying federal habeas relief may not proceed unless a judge issues a certificate of appealability. See U.S.C. § 2253. The standard for granting a certificate of appealability requires a movant to make a substantial showing of the denial of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473 483-84; Elizalde v. Dretke, 362 F. 3d

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323, 328 (5 Cir. 2004). In making a 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. Slacke, 529 U.S. at 483-84; Avila v. Quarterman, 560 F. 3d 299, 304 (5 Cir. 2009). Any doubt regarding whether to grant a certificate of appealability should be resolved in favor of the movant. See Miller v. Johnson, 200 F. 3d 274, 280-81 (5 Cir. ), cert. denied, 531 U.S. 849 (2000).

        In this case, the movant has not shown that the issue of whether her motion to vacate is successive is subject to debate among jurists of reason. Nor has she shown that the merits of her grounds for review are subject to debate. In addition, the questions presented are not worthy of encouragement to proceed further. As a result, a certificate of appealability shall not be issued.

        __________        Ron Clark, United States District Judge