Emerson v. Lewis et al, No. 3:2020cv02163 - Document 11 (N.D. Tex. 2020)

Court Description: Order Accepting 8 Findings and Recommendations re: 3 Petition for Writ of Habeas Corpus,filed by Terrance Wayne Emerson; dismissing without prejudice action under Rule 41(b) for failure to prosecute and comply with a court order; and Denying Certificate of Appealability (Ordered by Judge Sam A. Lindsay on 10/29/2020) (chmb)

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Emerson v. Lewis et al Doc. 11 Case 3:20-cv-02163-L-BT Document 11 Filed 10/29/20 Page 1 of 2 PageID 65 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION TERRANCE WAYNE EMERSON, Petitioner, v. WARDEN LEWIS, Respondent. § § § § § § § § § § Civil Action No. 3:20-CV-2163-L-BT (Consolidated with Civil Action Nos. 3:20-CV-2305-L and 3:20-CV-2306-L) ORDER On September 19, 2020, the Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 8) was entered in this case, recommending that this habeas action be dismissed without prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute and comply with a court order. No objections to the Report were filed. Having considered the Petition for Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 3) (“Petition”), 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 without prejudice the Petition (Doc. 3), and dismisses without prejudice this habeas action under Federal Rule of Civil Procedure 41(b) for failure to prosecute and 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 Case 3:20-cv-02163-L-BT Document 11 Filed 10/29/20 Page 2 of 2 PageID 66 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 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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