Sorrell v. Stephens, Director TDCJ-CID
Filing
11
Order Accepting 8 Findings and Recommendations and Denying Certificate of Appealability on Case re: 3 Petition for Writ of Habeas Corpus, filed by Elmer Sorrell. (Ordered by Judge Sam A Lindsay on 12/4/2013) (cea)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
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ELMER SORRELL, #28618-180,
Petitioner,
v.
STATE OF TEXAS,
Respondent.
Civil Action No. 3:13-CV-4437-L
ORDER
Before the court is Petitioner Elmer Sorrell’s (“Petitioner”) Petition for Writ of Habeas
Corpus, filed pursuant to 28 U.S.C. § 2254. The case was referred to Magistrate Judge Renee Harris
Toliver, who entered Findings, Conclusions and Recommendation of the United States Magistrate
Judge (“Report”) on November 8, 2013, recommending that Petitioner’s habeas petition be
dismissed without prejudice for lack of jurisdiction. Petitioner filed objections to the Report, dated
November 25, 2013.
Having reviewed the pleadings, file, objections, 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. The court therefore overrules
Petitioner’s objections, denies his Petition for Writ of Habeas Corpus, and dismisses without
prejudice this action for lack of jurisdiction.
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),
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 $505 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 4th day of December, 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.
Order – Page 2
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