Kindred v. Davis-Director TDCJ-CID, No. 3:2017cv02428 - Document 16 (N.D. Tex. 2017)
Court Description: Order Accepting 9 Findings and Recommendations and Denying Certificate of Appealability on Case re: 3 Petition for Writ of Habeas Corpus, filed by Herman Lee Kindred. In the event that petitioner will file a notice of appeal, the court notes that he may proceed in forma pauperis on appeal. (Ordered by Senior Judge A. Joe Fish on 10/17/2017) (epm)
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Kindred v. Davis-Director TDCJ-CID Doc. 16 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION HERMAN LEE KINDRED (TDCJ No. 671207), Petitioner, VS. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 3:17-CV-2428-G (BN) 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. Dockets.Justia.com 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).* * 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 (continued...) -2- In the event that petitioner will file a notice of appeal, the court notes that he may proceed in forma pauperis on appeal. SO ORDERED. October 17, 2017. ___________________________________ A. JOE FISH Senior United States District Judge * (...continued) 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. -3-
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