Smith v. Davis-Director TDCJ-CID, No. 3:2017cv00138 - Document 26 (N.D. Tex. 2017)
Court Description: Order Accepting 24 Findings and Recommendations and Denying Certificate of Appealability. (Ordered by Judge Sidney A Fitzwater on 12/27/2017) (aaa)
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Smith v. Davis-Director TDCJ-CID Doc. 26 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RONALD D. SMITH, ID # 1969543, Petitioner, vs. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. ) ) ) ) ) ) ) ) ) No. 3:17-CV-0138-D ORDER After making an independent review of the pleadings, files, and records in this case, and the findings, conclusions, and recommendation of the magistrate judge, the court concludes that the findings and conclusions are correct. It is therefore ordered that the findings, conclusions, and recommendation of the magistrate judge are adopted. For the reasons stated in the findings, conclusions, and recommendation of the United States Magistrate Judge, the petition for habeas corpus is successive regarding the burglary conviction and is transferred to the United States Court of Appeals for the Fifth Circuit pursuant to Henderson v. Haro, 282 F.3d 862, 864 (5th Cir. 2002), and In re Epps, 127 F.3d 364, 365 (5th Cir. 1997), by separate judgment. For the reasons stated in the findings, conclusions, and recommendation of the United States Magistrate Judge, the petition for habeas corpus regarding the child pornography convictions is dismissed for lack of subject matter jurisdiction. In accordance with Fed. R. App. P. 22(b) and 28 U.S.C. § 2253(c), and after considering the record in this case and the recommendation of the magistrate judge, the court denies a certificate of appealability regarding the dismissal of the petition for lack of subject matter jurisdiction over the Dockets.Justia.com challenge to the child pornography convictions. The court adopts and incorporates by reference the magistrate judge’s findings, conclusions, and recommendation in support of its finding that petitioner 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). If petitioner files a notice of appeal regarding the dismissal of the petition for lack of subject matter jurisdiction over the challenge to the child pornography convictions, he must pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis and a properly signed certificate of inmate trust account. SIGNED December 27, 2017. _________________________________ SIDNEY A. FITZWATER UNITED STATES DISTRICT JUDGE 2
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