Rounds v. USA, No. 3:2019cv02453 - Document 8 (N.D. Tex. 2020)
Court Description: Order Accepting 5 Findings and Recommendations, dismissing with prejudice action, and Denying Certificate of Appealability (Ordered by Judge Sam A. Lindsay on 10/29/2020) (chmb)
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Rounds v. USA Doc. 8 Case 3:19-cv-02453-L-BK Document 8 Filed 10/29/20 Page 1 of 2 PageID 39 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION CIERRA ALLYN ROUNDS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. § § § § § § § § Civil Action No. 3:19-CV-2453-L-BK Criminal No. 3:14-CR-374-L-2 ORDER On August 20, 2020, the Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 5) was entered in this case, recommending that this habeas action under 28 U.S.C. § 2255 be dismissed with prejudice as time-barred with no basis for equitable tolling or credible claim of actual innocence. Although the deadline to object to the Report was extended to October 5, 2020, no objections to the Report were filed as of the date of this order. After considering Petitioner’s Motion under 28 U.S.C. § 2255 to Vacate, Set-aside, or Correct Sentence (Doc. 1) (“Motion”), the file, record in this case, and Report, the court determines that the findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. Accordingly, the court denies Petitioner’s (Doc. 1), and dismisses with prejudice this habeas action as barred by the statute of limitations without any basis for equitable tolling or credible claim for actual innocence. 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 Case 3:19-cv-02453-L-BK Document 8 Filed 10/29/20 Page 2 of 2 PageID 40 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 a notice of appeal is filed, Petitioner must pay the $505 appellate filing fee or submit a motion to proceed in forma pauperis on appeal. It is so ordered this 29th day of October, 2020. _________________________________ 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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