Lacy v. Thaler, Director TDCJ-CID

Filing 10

AMENDED ORDER: The court vacates its 9 order and issues the amended order in its place. The court determines that the 6 findings and conclusions of the magistrate judge are correct and accepts them as those of the court. Petitioner's objections are overruled. Habeas corpus petition is successive, and the clerk is directed to transfer the matter to the Fifth Circuit Court of Appeals. (Fifth Circuit notified via copy of the Notice of Electronic Filing.) The court denies a certificate of appealability. (Ordered by Judge Sam A Lindsay on 7/9/2013) (twd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NICHOLAS O. LACY, #607743,
v.
RICK THALER, Director
Texas Department of Criminal Justice,
Correctional Institutions Div.,

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Civil Action No. 3:13-CV-972-L

AMENDED ORDER
The court vacates its order issued in this case on July 8, 2013, and issues the amended order
in its place. Before the court is Nicholas O. Lacy’s (“Lacy” or “Petitioner”) Petition for a Writ of
Habeas Corpus by a Person in State Custody, received by the court on March 5, 2013. The case was
referred to Magistrate Judge Renee Harris Toliver, who entered Findings, Conclusions and
Recommendation of the United States Magistrate Judge (“Report”) on April 2, 2013, recommending
that Petitioner’s successive habeas petition, brought pursuant to 28 U.S.C. § 2254, be transferred to
the United States Court of Appeals for the Fifth Circuit because the court lacks jurisdiction to
consider it absent authorization by the court of appeals. Lacy filed objections to the Report. The
objections, however, do not cure the deficiency noted in the Report. After reviewing the pleadings,
file, and record in this case, the court determines that the findings and conclusions of the magistrate
judge are correct and accepts them as those of the court. The court therefore overrules Petitioner’s
objections and directs the clerk of the court to forward Lacy’s habeas petition to the United States
Court of Appeals for the Fifth Circuit for consideration.
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),

Amended Order – Page 1

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.
It is so ordered this 9th day of July, 2013.
_________________________________
Sam A. Lindsay
United States District Judge

*

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.
Amended Order – Page 2