IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION KYLE DAVIS, § § § CIVIL ACTION NO. 5:19-CV-00081-RWS-CMC v. § § § UNITED STATES OF AMERICA, ORDER Movant, Kyle Davis, an inmate currently confined at FCI Texarkana, proceeding pro se, brought this motion to vacate, set aside or correct sentence pursuant to

. The Court referred this matter to the Honorable Caroline Craven, United States Magistrate Judge, for consideration pursuant to applicable laws and orders of this Court. The Magistrate Judge recommended dismissing the motion (Docket No. 5). The Court has received and considered the Report and Recommendation of the Magistrate Judge filed pursuant to such order, along with the record and the pleadings. Davis acknowledged receipt of the Report and Recommendation on June 14, 2021 (Docket No. 6). No objections have been filed by the parties. 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 motion and the Magistrate Judge’s report and agrees with the report. 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)). Accordingly, the Court hereby ADOPTS the Report and Recommendation of the United States Magistrate Judge as the findings and conclusions of this Court. Davis’s motion is therefore DISMISSED WITHOUT PREJUDICE.

Furthermore, the Court is of the opinion that Davis is not entitled to a certificate of appealability. An appeal from a judgment denying post-conviction collateral relief may not proceed unless a judge issues a certificate of appealability. See

. The standard for a certificate of appealability 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). To make a substantial showing, the movant need not establish that he would 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 should be 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.), cert. denied,

(2000). In this case, Davis has not shown that any of the issues would be subject to debate among jurists of reason. The questions presented are not worthy of encouragement to proceed further. Therefore, Davis has failed to make a sufficient showing to merit the issuance of certificate of appealability. Accordingly, a certificate of appealability will not be issued. So ORDERED and SIGNED this 2nd day of August, 2021.

foeher t LU Glrimecls. G2 ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE

Page 3 of 3