Graham v. Thaler
Filing
7
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND DENYING A CERTIFICATE OF APPEALABILITY. Petitioner's writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, is DISMISSED without prejudice for want of prosecution under Federal Rule of Civil Procedure 41(b). The Court DENIES a certificate of appealability. (Ordered by Judge Reed C O'Connor on 4/19/2012) (cea)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DONALD GRAHAM,
Petitioner,
v.
RICK THALER, DIRECTOR TDCJCID,
Respondent.
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Civil Action No. 3:12-cv-287-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.
Accordingly, Petitioner’s writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, is
DISMISSED without prejudice for want of prosecution under Federal Rule of Civil Procedure
41(b).
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 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 on this 19th day of April, 2012.
_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE
1
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.
2
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