Crain v. Dallas County Sheriff et al, No. 3:2014cv00920 - Document 13 (N.D. Tex. 2014)

Court Description: ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND DENYING A CERTIFICATE OF APPEALABILITY re: 10 Findings and Recommendations on Case re: 3 Petition for Writ of Habeas Corpus, filed by Rubin Crain, IV. Petitioner's 28 U.S.C. § 2241 application is construed as an application for habeas corpus relief pursuant to 28 U.S.C. § 2254. The case is dismissed without prejudice for failure to exhaust state remedies. The Petitioner will need to pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis. (Ordered by Judge Barbara M.G. Lynn on 9/12/2014) (tla)

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Crain v. Dallas County Sheriff et al Doc. 13 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RUBIN CRAIN, IV, Petitioner, V. DALLAS COUNTY SHERIFF, ET AL., Respondents. § § § § § § § § § No. 3:14-CV-920-M 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. An objection was filed by Petitioner. 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. Petitioner’s 28 U.S.C. § 2241 application is construed as an application for habeas corpus relief pursuant to 28 U.S.C. § 2254. The case is dismissed without prejudice for failure to exhaust state remedies. 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 1 Dockets.Justia.com 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: ( ) (X) the Petitioner will proceed in forma pauperis on appeal. the Petitioner will need to pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis. SO ORDERED this 12th day of September, 2014. _________________________________ BARBARA M. G. LYNN UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT OF TEXAS 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

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