IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION

DONALD LARAY FAGAN, § §

§ CIVIL ACTION NO. 5:19-CV-00147-RWS Plaintiff, §

§ v. §

§ UNITED STATES OF AMERICA, § § Defendant. §

ORDER Movant Donald Laray Fagan, an inmate confined at the United States Penitentiary in Tuscon, Arizona, proceeding pro se, brought this motion to vacate, set aside or correct sentence pursuant to

. The Court referred this matter to the United States Magistrate Judge. The Magistrate Judge recommends dismissing this motion to vacate, set aside or correct sentence as successive. Docket No. 11 (“Report and Recommendation”). The Court has received and considered the Report and Recommendation, along with the record, pleadings and all available evidence. No objections to the Report and Recommendation have been filed. Because no objections to the Magistrate Judge’s Report have been filed, neither party is entitled to de novo review by the District Judge of those findings, conclusions and recommendations, and except upon grounds of plain error, they are barred from appellate review of the unobjected-to factual findings and legal conclusions accepted and adopted by the District Court. 28 U.S.C § 636(b)(1)(C); Douglass v. United Services Automobile Assoc.,

(5th Cir. 1996) (en banc). Nonetheless, the Court has reviewed the Magistrate Judge’s Report and Recommendation and agrees with it. See United States v. Raddatz,

(1980) (“[T]he statute permits the district court to give to the magistrate’s proposed findings of fact and recommendations ‘such weight as [their] merit commands and the sound discretion of the judge warrants.’ ”) (quoting

Mathews v. Weber,

, 275 (1976)). Additionally, the Court finds that 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

; 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,

(2000); Elizalde v. Dretke,

(5th Cir. 2004); see also Barefoot v. Estelle,

(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,

. 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,

(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. The factual and legal questions advanced by the movant are not novel and have been consistently resolved adversely to his position. 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 certificate of appealability. Accordingly, a certificate of appealability shall not be issued. Accordingly, the findings of fact and conclusions of law of the Magistrate Judge are correct and the Report and Recommendation (Docket No. 11) is ADOPTED. A final judgment will be entered in this case in accordance with the Magistrate Judge’s recommendations.

So ORDERED and SIGNED this 10th day of June, 2021.

[debe t LU fplarivechs. G2. ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE

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