Sides v. Quarterman, No. 3:2008cv01099 - Document 57 (N.D. Tex. 2015)

Court Description: Order Accepting 49 Findings and Recommendations and Denying Certificate of Appealability re: 45 Motion to Reopen Case, Motion for Leave to File filed by Thomas Ray Sides, 46 Motion for Leave to Proceed in forma pauperis filed by Thomas Ray Sides. The District Court reviewed de novo those portions of the proposed findings, conclusions, and recommendation to which objection was made, and reviewed the remaining proposed findings, conclusions, and recommendation for plain error. Finding no error, the Court ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge. The Court DENIES a certificate of appealability. The Court notes that this Order does not disturb the Courts Final Judgment entered on 12/18/2014. (Ordered by Judge Reed C O'Connor on 3/3/2015) (cea)

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Sides v. Quarterman Doc. 57 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION THOMAS RAY SIDES, Petitioner V. WILLIAM STEPHENS, Director Texas Department of Criminal Justice Correctional Institutions Division, Respondent. § § § § § § § § § § § No. 3:08-cv-1099-O-BN (Consolidated With: No. 3:08-cv-1100-O) ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND DENYING A CERTIFICATE OF APPEALABILITY The United States Magistrate Judge made findings, conclusions, and a recommendation in this case. On December 18, 2014, the Court accepted the findings, conclusions, and recommendation of the Magistrate Judge and entered its Final Judgment. See Order, Dec. 18, 2014, ECF No. 50; Final J., ECF No. 51. On January 13, 2015, Petitioner informed the Court that he did not receive the Magistrate Judge’s findings, conclusion, and recommendation until after the deadline to object had lapsed. See ECF No. 52. Accordingly, the Court granted Petitioner an extension to object. See Order, Jan. 14, 2015, ECF No. 53; Order, Feb. 11, 2015, ECF No. 55. An objection was filed by Petitioner, which was entered on March 2, 2015. ECF No. 56. The District Court reviewed de novo those portions of the proposed findings, conclusions, and recommendation to which objection was made, and reviewed the remaining proposed findings, conclusions, and recommendation for plain error. Finding Dockets.Justia.com no error, the Court ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge. 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 adopts and incorporates by reference the Magistrate Judge’s Findings, Conclusions, and Recommendation filed in this case in support of its finding that the 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).1 In the event the Petitioner will file a notice of appeal, the Court notes that: ( ) the Petitioner will proceed in forma pauperis on appeal. 1 Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended effective on December 1, 2009, reads 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. -2- (X) the Petitioner will need to pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis. The Court notes that this Order does not disturb the Court’s Final Judgment entered on December 18, 2014. SO ORDERED this 3rd day of March, 2015. _____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE

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