Crain v. Dallas County Sheriff et al, No. 3:2014cv03711 - Document 5 (N.D. Tex. 2014)
Court Description: Order Accepting Findings and Recommendations and Denying Certificate of Appealability re: 4 Findings and Recommendations on Case re: 3 Petition for Writ of Habeas Corpus, filed by Rubin Crain, IV. The court determines that the findings and conclusions of the magistrate judge are correct, accepts them as those of the court, and dismisses without prejudice this action for failure to exhaust state remedies. 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. (Ordered by Judge Sam A Lindsay on 11/18/2014) (tla)
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Crain v. Dallas County Sheriff et al Doc. 5 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RUBIN CRAIN, IV, Petitioner, v. DALLAS COUNTY SHERIFF AND CRAIG WATKINS, Respondents. § § § § § § § § § Civil Action No. 3:14-CV-3711-L ORDER Before the court is Rubin Crain, IV’s (“Crain” or “Petitioner”) Petition for Writ of Habeas Corpus by a Person in State Custody (Doc. 4), filed pursuant to 28 U.S.C. § 2254. The habeas petition is dated August 13, 2014, but it was not received by the court until October 16, 2014. The case was referred to Magistrate Judge Renee Harris Toliver, who entered Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on October 20, 2014, recommending that Petitioner’s habeas petition be dismissed without prejudice for failure to exhaust state remedies. No objections to the Report were received as of the date of this order. After reviewing 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 of the magistrate judge are correct, accepts them as those of the court, and dismisses without prejudice this action 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), 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. It is so ordered this 18th 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
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