Padilla v. Stephens, Director TDCJ-CID

Filing 18

ORDER ACCEPTING 10 FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. The Court DENIES a certificate of appealability. (Ordered by Judge David C Godbey on 11/12/2013) (tln)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ISMAEL HERNANDEZ PADILLA,
#356764,
Petitioner,
v.
WILLIAMS STEPHENS, Director
TDCJ-CID,
Respondent.

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3:13-CV-1702-N-BK

ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made Findings, Conclusions, and a Recommendation
in this case. Plaintiff/Petitioner filed objections, and the District Court has made a de novo
review of those portions of the proposed findings 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.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is summarily
DISMISSED without prejudice for lack of jurisdiction insofar as it challenges Petitioner’s
aggravated rape conviction, and with prejudice as barred by the one-year statute of limitations
with respect to the aggravated robbery conviction.
IT IS FURTHER ORDERED that Petitioner is WARNED, as in Nos. 3:13-CV-02273-LBN and 3:13-CV-1855-N-BN, that sanctions will be imposed against him if he files successive
habeas applications without first obtaining permission from the Fifth Circuit, or files frivolous
federal civil rights or habeas corpus claims challenging his aggravated robbery and aggravated
rape convictions. In addition to monetary sanctions, Petitioner may be barred from filing any

other actions in federal district court without the permission of a United States district judge or
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 Sections 2254 and 2255 Proceedings in 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
If petitioner files a notice of appeal,
(X)

petitioner may proceed in forma pauperis on appeal.

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petitioner must pay the $455.00 appellate filing fee or submit a motion to proceed
in forma pauperis.

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.

SO ORDERED this 12th day of November, 2013.

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UNITED STATES DISTRICT JUDGE