Wanyoike v. USA, No. 3:2014cv02042 - Document 8 (N.D. Tex. 2014)

Court Description: Order Accepting Findings and Recommendations and Denying Certificate of Appealability re: 7 Findings and Recommendations on Case re: 2 Motion to Vacate under 28 U.S.C. 2255, filed by Kennedy Githaiga Wanyoike. (Ordered by Judge Sam A Lindsay on 11/24/2014) (cea)

Download PDF
Wanyoike v. USA Doc. 8 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION KENNEDY GITHAIGA WANYOIKE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. § § § § § § § § Civil Action No. 3:14-CV-2042-L-BN ORDER The case was referred to Magistrate Judge David L. Horan, who entered Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on October 2, 2014, recommending that this action be dismissed sua sponte for failure to prosecute and failure to comply with a court order pursuant to Federal Rule of Civil Procedure 41(b). The magistrate judge gave Petitioner an additional 14 days from the date of his Report to comply with the court’s previous orders. Petitioner never complied, and no objections to the Report were filed. Having reviewed the pleadings, file, and record in this case, and the findings and conclusions of the magistrate judge, the court determines that the findings and conclusions are correct, accepts them as those of the court, and dismisses without prejudice this action pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and failure to comply with a court order. 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), Order - Page 1 Dockets.Justia.com the court denies a certificate of appealability.* The court determines 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). In support of this determination, the court accepts and incorporates by reference the magistrate judge’s report filed in this case. In the event that Petitioner files a notice of appeal, he must pay the $505 appellate filing fee or submit a motion to proceed in forma pauperis (“IFP”), unless he has been granted IFP status by the district court. Pursuant to Rule 58(a) of the Federal Rules of Civil Procedure, the court will enter judgment by separate document. It is so ordered this 24th day of November, 2014. _________________________________ Sam A. Lindsay United States District Judge * Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides 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. Order - Page 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.