Opinion
No. 2:99-cr-0358 GEB AC
07-18-2019
UNITED STATES OF AMERICA, Respondent, v. KEVIN C. REID, Movant.
ORDER
Movant, a federal prisoner proceeding through counsel, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On June 25, 2019, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Movant has filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis. /////
Nevertheless, movant has adequately demonstrated that the issues presented by this case may be "'debatable among jurists of reason,'" could be resolved differently by another court, or are "'adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Before movant can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 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). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3).
Except for the requirement that appealable issues be specifically identified, the standard for issuance of a certificate of appealability is the same as the standard that applies to issuance of a certificate of probable cause. Jennings, at 1010. --------
In the present case, movant has demonstrated entitlement to a certificate of appealability on the constitutionality of this court's construction of movant's conviction for attempted Hobbs Act robbery as a crime of violence under 18 U.S.C. § 924(c).
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed June 25, 2019, are adopted in full;
2. The Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255, ECF No. 43, is denied;
3. The Clerk of Court is directed to close the companion civil case, No. 2:16-cv-1444 GEB AC, and to enter judgment; and
4. A certificate of appealability under 28 U.S.C. § 2253 shall issue. Dated: July 18, 2019
/s/_________
GARLAND E. BURRELL, JR.
Senior United States District Judge