UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARVIN JAMES RHINE, § § Movant, § § versus § CIVIL ACTION NO. 1:19-CV-177 § UNITED STATES OF AMERICA, § § Respondent. § MEMORANDUM ORDER OVERRULING MOVANT’S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Movant Marvin James Rhine, an inmate confined at the United States Penitentiary located Pollock, Louisiana, proceeding pro se, brought this motion to vacate, set aside or correct sentence pursuant to

. The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The magistrate judge recommends denying and dismissing the motion to vacate. The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record, pleadings and all available evidence. Movant filed objections to the magistrate judge’s Report and Recommendation. This requires a de novo review of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes movant’s objections are without merit. Movant has failed to satisfy his burden of proof regarding his claims against counsel concerning an alleged unkept promise. Movant failed to prove (1) the exact terms of the alleged promise; (2) exactly when, where, and by whom the promise was made; or (3) the precise identity of an eyewitness to the promise, as required. See United States v. Cervantes,

(5th Cir. 1998). Movant’s claims are inconsistent with the representations he made in open court, and he has failed to produce any independent indicia of the likely merit of his allegations.

Accordingly, movant’s objections should be overruled.

Furthermore, the movant is not entitled to the issuance of a certificate of appealability. An appeal from a judgment denying a motion under section 2255 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.), cert. denied,

(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 2 to make a sufficient showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of appealability shall not be issued. ORDER Accordingly, movant’s objections are OVERRULED. The 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 in this case in accordance with the magistrate judge’s recommendation.

SIGNED at Beaumont, Texas, this 26th day of July, 2022.

be Orne. MARCIA A.CRONE- UNITED STATES DISTRICT JUDGE