Hart v. Davis-Director TDCJ-CID

Filing 28

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS AND DENYING PETITION FOR A WRIT OF HABEAS CORPUS re: 23 Findings, Conclusions and Recommendation. (Ordered by Judge Matthew J. Kacsmaryk on 9/17/2019) (awc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
CALEB LOGAN HART,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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CIVIL ACTION NO. 2:17-CV-6-Z-BR

ORDER ADOPTING MAGISTRATE JUDGE’S FINDINGS AND CONCLUSIONS AND
DENYING PETITION FOR A WRIT OF HABEAS CORPUS
On June 14, 2019, the United States Magistrate Judge entered findings and conclusions on
the Petition for a Writ of Habeas Corpus. The Magistrate Judge RECOMMENDS that the petition
be DENIED. No objections to the findings, conclusions, and recommendation have been filed.
After making an independent review of the pleadings, files, and records in this case, and the
findings, conclusions, and recommendation of the magistrate judge, the Court concludes that the
findings and conclusions are correct. It is therefore ORDERED that the findings, conclusions, and
recommendation of the Magistrate Judge are ADOPTED, and the Petition for a Writ of Habeas
Corpus is DENIED.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts,
and 28 U.S.C. § 2253(c), the Court denies a certificate of appealability because Petitioner has
failed to make “a substantial showing of the denial of a constitutional right.” Slack v. McDaniel,
529 U.S. 473, 483 (2000). The Court ADOPTS and incorporates by reference the Magistrate
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Judge’s findings, conclusions, and recommendation filed in this case in support of its finding 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.” Id. at 484.
On August 26, 2019, Petitioner filed a “Motion for Protective Petition.” The motion
requests the Court to stay and abet his federal habeas proceeding because he has claims
unexhausted in state court. “Stay and abeyance is only appropriate when the district court
determined there was good cause for the petitioner’s failure to exhaust his claims first in state
court.” Rhines v. Weber, 544 U.S. 269, 277 (2005). Petitioner has not presented good cause for his
failure to exhaust his claims first in state court. Therefore, Petitioner’s motion is DENIED.
If Petitioner files a notice of appeal,
(X)

Petitioner may proceed in forma pauperis on appeal. See Federal Rule of
Appellate Procedure 24(a)(3).

( )

Petitioner must pay the $505.00 appellate filing fee or submit a motion to
proceed in forma pauperis on appeal.

SIGNED September 17, 2019.
________________________________
MATTHEW J. KACSMARYK
UNITED STATES DISTRICT JUDGE

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