Brown v. Thaler, Director TDCJ-CID

Filing 19

ORDER ACCEPTING 11 , 14 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND DENYING CERTIFICATE OF APPEALABILITY. (see order) (Ordered by Judge Barbara M. G. Lynn on 4/21/2010) (mfw)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

RICHARD BROWN, JR., Petitioner, v. RICK THALER, Director, Respondent.

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3:09-CV-1999-M

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND DENYING CERTIFICATE OF APPEALABILITY On February 25, 2010, the United States Magistrate Judge made Findings, Conclusions and a Recommendation in this case. Petitioner filed no objections, but moved to supplement his petition, and on March 12, 2010, the United States Magistrate Judge filed supplemental Findings, Conclusions and a Recommendation. On April 5, 2010, the Petitioner filed objections and moved to stay and abate. The District Court has made a de novo review of those portions of the original and supplemental Findings, Conclusions and Recommendation to which objection was made. The Petitioner's Motion to supplement his petition by adding new, apparently unexhausted claims, is DENIED, as recommended by the United States Magistrate Judge. The other objections are overruled, and the Court ACCEPTS the original and supplemental 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 as to the original claims, 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 21st day of April, 2010.

_________________________________ BARBARA M. G. LYNN UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT OF TEXAS 2

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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