Borgersen v. Stephens, Director TDCJ-CID
Filing
23
Order Accepting Findings and Recommendations and Denying Certificate of Appealability re: 20 Findings and Recommendations on Case re: 3 Petition for Writ of Habeas Corpus, filed by Rod Garrett Borgersen. (Ordered by Judge Jorge A Solis on 9/27/2013) (chmb)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ROD GARRETT BORGERSEN,
Petitioner,
V.
WILLIAM STEPHENS, Director
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
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No. 3:13-cv-1271-P
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. Objections were filed by Petitioner and Respondent. The
District Court reviewed de novo those portions of the proposed findings, conclusions,
and recommendation to which objections were made, and reviewed the remaining
proposed findings, conclusions, and recommendation for plain error. Finding no error,
the Court ACCEPTS the Findings, Conclusions, and Recommendation of the United
States Magistrate Judge.
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 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 the Petitioner will file a notice of appeal, the Court notes that:
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(X)
the Petitioner will proceed in forma pauperis on appeal.
the Petitioner will need to pay the $455.00 appellate filing fee or submit a
motion to proceed in forma pauperis.
SO ORDERED this 27th day of September, 2013.
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JORGE A. SOLIS
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.
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