Taylor v. Davis, Director TDCJ-CID
Filing
31
ORDER ACCEPTING 26 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND DENYING CERTIFICATE OF APPEALABILITY. (Ordered by Judge Barbara M.G. Lynn on 11/26/2012) (tln)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JEFFERY DEE TAYLOR, #1488457,
Petitioner,
v.
RICK THALER, Director,
Texas Department of Criminal Justice,
Correctional Institutions Div.,
Respondent.
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3:11-CV-3096-M-BK
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 on November 16, 2012, and the District Court has made a
de novo review of those portions of the proposed Findings, Conclusions and Recommendation to
which objection was made. The objections are overruled, and the Court ACCEPTS the
Findings, Conclusions and Recommendation of the United States Magistrate Judge and DENIES
Petitioner’s motion to amend (Doc. 21). The Court notes, however, that with respect to the Ibara
issue highlighted at page 9 of the Findings, Conclusions, and Recommendation, the Supreme
Court has granted certiorari in Trevino v. Thaler, No. 11-10189, 2012 WL 1599338 (Oct. 29,
2012). Further, the Court interprets the reference at page 6 of the Findings, Conclusions, and
Recommendation to “that fact” to be what was in the files of Ginger Brooks, not other evidence
of Petitioner’s cross-dressing.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing Sections 2254 and 2255 Proceedings for the United
States District Court, 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
SO ORDERED this 26th day of November, 2012.
_________________________________
BARBARA M. G. LYNN
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF TEXAS
1
Rule 11 of the Rules Governing §§ 2254 and 2255 Proceedings, 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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