UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS 

JAMES VALENTINISDEE, §

§

Movant, §

§

versus § CIVIL ACTION NO. 9:23-CV-72

§

UNITED STATES OF AMERICA, §

§

Respondent. §

ORDER OVERRULING MOVANT’S OBJECTIONS AND ADOPTING

THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Movant James Valentinisdee, a federal prisoner confined at the United States Penitentiary

in Coleman, Florida, proceeding pro se, filed this Motion to Vacate, Set Aside or Correct

Sentence pursuant to 28 U.S.C. § 2255.

The court referred this matter to the Honorable Christine L. Stetson, United States

Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders

of this court. The magistrate judge recommends dismissing the Motion to Vacate Sentence without

prejudice as a successive motion, filed without authorization from the United States Court of

Appeals for the Fifth Circuit.

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.

The court has conducted a de novo review of the objections in relation to the pleadings and

the applicable law. See FED. R. CIV. P. 72(b). This is a successive Motion to Vacate Sentence,

filed without authorization from the Fifth Circuit. Therefore, the objections lack merit. To the

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extent that Movant challenges the conditions of his confinement and the calculation of his sentence,

he may pursue those claims in the appropriate district court.

In addition, 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 28 U.S.C. § 2253; 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, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362

F.3d 323, 328 (5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (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, 529 U.S. at 483-84; Avila v. Quarterman, 560 F.3d

299, 304 (5th Cir. 2009). If the motion was denied on procedural grounds, the movant must show

that jurists of reason would find it debatable: (1) whether the motion raises a valid claim of the

denial of a constitutional right, and (2) whether the district court was correct in its procedural

ruling. Elizalde, 362 F.3d at 328. 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, 200 F.3d 274, 280-81 (5th Cir. 2000).

Here, Movant has not shown that any of the issues raised by his claims are subject to

debate among jurists of reason, or that a procedural ruling is incorrect. In addition, the questions

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presented are not worthy of encouragement to proceed further. Therefore, Movant has failed to

make a sufficient showing to merit the issuance of a certification of appealability. 

ORDER

Accordingly, Movant’s objections (#5) are OVERRULED. The findings of fact and

conclusions of law of the magistrate judge are correct, and the report of the magistrate judge (#3)

is ADOPTED. A certificate of appealability will not be issued. A final judgment will be entered

in this case in accordance with the magistrate judge’s recommendation. 

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