Buffington v. Quarterman

Filing 37

ORDER ACCEPTING 34 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, ANDDENYING CERTIFICATE OF APPEALABILITY: The petitioner will need to pay the $455.00 appellate filing fee or submit a motion to proceed in forma pauperis. (See Order) (Ordered by Judge Barbara M. G. Lynn on 2/4/2010) (dnc)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION SETH DANIEL BUFFINGTON, 1371074, Petitioner, v. RICK THALER, Director, Texas ) ) ) ) ) )

No. 3:09-CV-256-M

Dept. Of Criminal Justice, Correctional Institutions Division, Respondent.

) ) )

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND DENYING CERTIFICATE OF APPEALABILITY The United States Magistrate Judge made findings, conclusions and a recommendation in this case. Petitioner filed objections, and the District Court has made a de novo review of those portions of the proposed findings and recommendation to which objection was made. Specifically with reference to the exhaustion of his time credit claim, he provided no information about any such claim in the claims section of the state habeas, so the trial court did not address that issue, nor did Petitioner object to its failure to do so. The Court of Criminal Appeals denied the habeas based on the trial court's findings. The objections are overruled, and the Court ACCEPTS the Findings, Conclusions and Recommendation of the United States Magistrate Judge. 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).1 In the event, the petitioner will file a notice of appeal, the court notes that () (X) the petitioner will proceed in forma pauperis on appeal. the petitioner will need to pay the $455.00 appellate filing fee or submit a motion to proceed in forma pauperis. SO ORDERED this 4th day of February, 2010.

_________________________________ BARBARA M. G. LYNN UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT OF TEXAS

R u le 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended effective on December 1, 2 0 0 9 , reads as follows: (a) Certificate of Appealability. The district court must issue or deny a certificate of appealability w h e n it enters a final order adverse to the applicant. Before entering the final order, the court may d ir e c t the parties to submit arguments on whether a certificate should issue. If the court issues a c e r tific a te , 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 s e e k a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. A m o tio n 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 e n te r e d under these rules. A timely notice of appeal must be filed even if the district court issues a c e r tific a te of appealability.

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