Order – Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANTHONY KEITH FREENEY, 

#31366-177,

§

§

 Movant, §

§

v. §

§

 Civil Action No. 3:22-CV-0484-L-BT

 (Criminal Case No. 3:17-CR-664-L-1)

UNITED STATES OF AMERICA, §

§

 Respondent. §

ORDER

On May 4, 2023, United States Magistrate Judge Rebecca Rutherford entered the Findings, 

Conclusions, and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 14), 

recommending that the court deny pro se Movant Anthony Keith Freeney’s (“Movant”) motion to 

vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (“Motion”) (Doc. 2). The Report 

recommended dismissal because: (1) his claim of factual innocence is not cognizable as a 

freestanding claim brought under Section 2255 and thus not within the power of the court to 

adjudicate; (2) his argument that the Indictment was defective is procedurally barred because he 

failed to raise it during his criminal proceedings in a motion to dismiss or on direct appeal; and 

(3) his claims for ineffective assistance of counsel are too conclusory to overcome the deference 

afforded to his counsel’s conduct and because he failed to demonstrate prejudice. Doc. 14 at 3-8. 

Movant did not file objections to the Report, and the time to do has passed.

Having reviewed the pleadings, file, record in this case, and Report, the court determines 

that the findings and conclusions of the magistrate judge are correct, and accepts them as those of 

the court. Movant has not shown an entitlement to relief because the court cannot adjudicate his 

claim of factual innocence in this proceeding, he is procedurally barred from attacking the 

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Order – Page 2

Indictment, and he failed to set forth sufficient factual allegations to support his claims of 

ineffective assistance of counsel. Accordingly, the court denies Movant’s motion to vacate, set 

aside, or correct sentence under 28 U.S.C. § 2255 (Doc. 2), and it dismisses with prejudice this 

action. 

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 28 U.S.C. § 2253(c), 

the court denies a certificate of appealability.* The court determines that Movant 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, 529 U.S. 473, 484 (2000). In support of this 

determination, the court accepts and incorporates by reference the magistrate judge’s report filed 

in this case. In the event that Movant files a notice of appeal, he must pay the $505 appellate filing 

fee or submit a motion to proceed in forma pauperis on appeal.

It is so ordered this 27th day of June, 2023.

_________________________________

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 28 U.S.C. § 2253(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.

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