Collins v. Thaler, Director TDCJ-CID
Filing
18
Order Accepting Findings and Recommendations and Denying Certificate of Appealability re: 16 Findings and Recommendations on Case. (Ordered by Judge Sam A Lindsay on 3/20/2013) (jrr)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GREGORY EARL COLLINS,
ID# 1051192,
Petitioner,
v.
RICK THALER, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
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Civil Action No. 3:12-CV-536-L-BH
ORDER
This case was referred to Magistrate Judge Irma Carrillo Ramirez, who entered Findings,
Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on February
19, 2013, recommending that the habeas petition brought by Gregory Earl Collins (“Petitioner”)
pursuant to 28 U.S.C. § 2254 be denied and the case dismissed with prejudice. The magistrate judge
determined that the Petitioner’s challenge to the denial of parole fails because there is no
constitutional right of a convicted person to be conditionally released before the expiration of his
sentence. Petitioner filed objections to the Report on February 28, 2013, contending that his claim
is not for the denial of parole but instead challenges the constitutionality of the criteria used to deny
parole. Regardless of how Petitioner attempts to characterize his claim or the grounds he uses to
challenge the denial of parole, at its core it is a challenge to the denial of parole. The court therefore
overrules the objection.
Order – Page 1
Having reviewed the pleadings, file, and record in this case, and the findings and conclusions
of the magistrate judge, 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 denies Petitioner’s
habeas petition 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 $455 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 20th day of March, 2013.
________________________________
Sam A. Lindsay
United States District Judge
Order – Page 3
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