Garrett v. Thaler, Director TDCJ-CID, No. 4:2009cv00624 - Document 20 (N.D. Tex. 2010)
Court Description: ORDER ADOPTING 12 Findings and Recommendations...petitioner Garrett's petition for writ of habeas corpus under 28 USC 2254 is denied; COA should not issue. (Ordered by Judge Terry R Means on 11/15/2010) (wrb)
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Garrett v. Thaler, Director TDCJ-CID Doc. 20 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION LONNIE LEE GARRETT, VS. RICK THALER, Director, T.D.C.J. Correctional Institutions Div. § § § § § § § CIVIL ACTION NO.4:09-CV-624-Y ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS AND ORDER DENYING CERTIFICATE OF APPEALABILITY In this action brought by petitioner Lonnie Lee Garrett under 28 U.S.C. § 2254, the Court has made an independent review of the following matters in the above-styled and numbered cause: 1. The pleadings and record; 2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on August 12, 2010; and 3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on September 20, 2010, and as supplemented on September 24, 2010. The Court, after de novo review, concludes that the Petitioner’s objections must be overruled, and that the petition for writ of habeas corpus must be denied, for the reasons stated in the magistrate judge's findings and conclusions. Therefore, the findings, conclusions and recommendation of the magistrate judge are ADOPTED. Petitioner Lonnie Lee Garrett’s petition for writ of habeas corpus under 28 U.S.C. § 2254 is DENIED. Certificate of Appealability Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a certificate of appealability (COA) is Dockets.Justia.com issued under 28 U.S.C. § 2253.1 Rule 11 of the Rules Governing Section 2254 Proceedings now requires that the Court “must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”2 The COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.”3 A petitioner satisfies this standard by showing “that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists of reason could conclude the issues presented are adequate to deserve encouragement to proceed further.”4 Upon review and consideration of the record in the abovereferenced case as to whether petitioner Garrett has made a showing that reasonable jurists would question this Court’s rulings, the Court determines he has not and that a certificate of appealability should not issue for the reasons stated in the August 12, 2010, Findings, Conclusions, and Recommendation of the United States Magistrate Judge.5 Therefore, a certificate of appealability should not issue. SIGNED November 15, 2010. ____________________________ TERRY R. MEANS UNITED STATES DISTRICT JUDGE 1 See FED. R. APP. P. 22(b). 2 RULES GOVERNING SECTION 2254 PROCEEDINGS IN THE UNITED STATES DISTRICT COURTS, RULE 11(a) (December 1, 2009). 3 28 U.S.C.A. § 2253(c)(2)(West 2006). 4 Miller-El v. Cockrell, 537 U.S. 322, 326 (2003), citing Slack v. McDaniel, 529 U.S. 473, 484 (2000). 5 See FED. R. APP. P. 22(b); see also 28 U.S.C.A. § 2253(c)(2)(West 2006). 2
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