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15-2028 - Bear Eagle v. USA


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15-2028 - Bear Eagle v. USA
August 18, 2016
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REPORT AND RECOMMENDATION recommending 1 Petitioner's Motion to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody pursuant to 28 U.S.C. § 2255 be GRANTED as to Ground One, and DENIED as to Grounds Two and Three. IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Magistrate Judge John Z Boyle on 8/18/16. (LSP)
November 18, 2016
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ORDER ADOPTING 12 Report and Recommendation of the Magistrate Judge as the Order of this Court. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 is granted as to Ground One and denied as to Grounds Two and Three. A Certificate of Appealability and leave to proceed in forma pauperis on appeal be denied as to the denial of the Motion on Grounds Two and Three because Petitioner has not made a substantial showing of the denial of a constitutional right as to Ground Two and because the denial of the Motion as to Ground Three is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. The judgment entered on May 12, 2015 in CR01-00794-PHX-SRB (Doc. 67) is vacated and an amended judgment will be entered. Signed by Judge Susan R Bolton on 11/18/16. (LSP)