IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JOEN CADENA, § § Petitioner, § v. § Civil Action No. 3:20-CV-1569-L-BK § Criminal No. 3:16-CR-232-L-1 UNITED STATES OF AMERICA, § § Respondent. § ORDER The Findings, Conclusions and Recommendation of the United States Magistrate Judge (Report) (Doc. 3) was entered on June 23, 2020, recommending that the court summarily dismiss with prejudice this habeas action brought pursuant to

because the Fifth Circuit rejected the same claim on direct appeal that Petitioner raises in this action—that his prior robbery conviction does not qualify as crime of violence. In his objections to the Report, which were docketed on July 14, 2020, Petitioner disagrees that he cannot raise this claim in this proceeding. He also contends that the Report does “not address that [his] plea was not knowingly or intelligently or willingly made.” Obj. 3. Having considered Petitioner’s Motion Under

to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (“Motion”) (Doc. 2), docketed on June 12, 2020, the 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. Moreover, no claim or factual basis is included in Petitioner’s Motion that would support a claim based on the voluntariness Order – Page 1 of his guilty plea. Accordingly, the court overrules Petitioner’s objections to the Report, denies his Motion (Doc. 2), and dismisses with prejudice this action for the reasons stated in the Report. 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

(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,

(2000). In support of this determination, the court accepts and incorporates by reference the Report. In the event that a notice of appeal is filed, Petitioner must pay the $505 appellate filing fee or submit a motion to proceed in forma pauperis on appeal. It is so ordered this 17th day of August, 2020.

<— “Sam A. Lindsay United States District Judge

“Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows: (a) Certificate of Appealability. The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue. If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by

(c)(2). If the court denies a certificate, the parties may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. A motion to reconsider a denial does not extend the time to appeal. (b) Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to appeal an order entered under these rules. A timely notice of appeal must be filed even if the district court issues a certificate of appealability. Order — Page 2