Walker v. Thaler, Director TDCJ-CID
Filing
40
Order Accepting 36 Findings, Conclusions and Recommendation of the United States Magistrate Judge and Denying Certificate of Appealability. (Ordered by Judge Sam A Lindsay on 4/2/2015) (tln)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ANTHONY GLENN WALKER,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
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Civil Action No. 3:11-CV-1055-L
ORDER
Before the court is Anthony Glenn Walker’s (“Walker” or “Petitioner”) Petition for Writ of
Habeas Corpus, filed May 20, 2011, pursuant to 28 U.S.C. § 2254. On March 15, 2013, the court
denied the petition and dismissed this action with prejudice. On appeal, the United States Court of
Appeals for the Fifth Circuit granted a certificate of appealability (“COA”) on the sole question of
whether the Gardner rule is an adequate and independent state ground where a constitutional issue
was raised on direct appeal but not in a petition for discretionary review.” Order 2 (Doc. 31). The
Fifth Circuit concluded that the Gardner rule was not adequate as of the date it was applied to
Walker’s state habeas petitions and reversed this court’s order finding that his claim was
procedurally defaulted. Id. at 4. The action was therefore remanded to this court to decide the merits
of Walker’s claim as to whether the trial court should have granted a motion to suppress the in-court
and out-of-court identifications of him by two robbery victims. On February 10, 2015, Magistrate
Judge David L. Horan entered Findings, Conclusions and Recommendation of the United States
Magistrate Judge (“Report”) recommending that Petitioner’s habeas petition as to this claim be
denied. On March 20, 2015, Walker filed objections to the Report.
Order – Page 1
After reviewing the pleadings, file, objections, 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 overrules Petitioner’s objections, denies Petitioner’s
Petition for Writ of Habeas Corpus, and dismisses with prejudice this action.
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 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 (“IFP”), unless he has been granted IFP status
by the district court.
*
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
It is so ordered this 2nd day of April, 2015.
_________________________________
Sam A. Lindsay
United States District Judge
Order – Page 3
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