Marrow v. Thaler

Filing 25

Order Accepting 20 Findings and Recommendation of the United States Magistrate Judge and Denying Certificate of Appealability. (Ordered by Judge Reed C O'Connor on 11/19/2012) (axm)

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

DAVID WAYNE MARROW, ID #
932428,
Petitioner,
v.
RICK THALER, DIRECTOR TDCJCID,
Respondent.

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Civil Action No. 3:11-CV-2375-O

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE AND
DENYING A CERTIFICATE OF APPEALABILITY
The United States Magistrate Judge made findings, conclusions and a recommendation in
this case. No objections were filed. Having reviewed the proposed findings, conclusions and
recommendation as required by 28 U.S.C. § 636(b), the Court finds that the Findings, Conclusions,
and Recommendation of the Magistrate Judge are correct, and they are adopted as the findings and
conclusions of the Court.
In accordance with Fed. R. App. P. 22(b) and 28 U.S.C. § 2253(c) and after considering the
record in this case and the recommendation of the Magistrate Judge, the Court DENIES petitioner
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 that petitioner files a notice of appeal, he is informed that he must pay the
$455.00 appellate filing fee or submit a motion to proceed in forma pauperis that is accompanied
by a properly signed certificate of inmate trust account.
SO ORDERED on this 19th day of November, 2012.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended effective on December 1, 2009, reads
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.

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