Wanyoike v. USA
Filing
8
Order Accepting Findings and Recommendations and Denying Certificate of Appealability re: 7 Findings and Recommendations on Case re: 2 Motion to Vacate under 28 U.S.C. 2255, filed by Kennedy Githaiga Wanyoike. (Ordered by Judge Sam A Lindsay on 11/24/2014) (cea)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KENNEDY GITHAIGA WANYOIKE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civil Action No. 3:14-CV-2042-L-BN
ORDER
The case was referred to Magistrate Judge David L. Horan, who entered Findings,
Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on October 2,
2014, recommending that this action be dismissed sua sponte for failure to prosecute and failure to
comply with a court order pursuant to Federal Rule of Civil Procedure 41(b). The magistrate judge
gave Petitioner an additional 14 days from the date of his Report to comply with the court’s previous
orders. Petitioner never complied, and no objections to the Report were filed.
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 are correct, accepts
them as those of the court, and dismisses without prejudice this action pursuant to Federal Rule of
Civil Procedure 41(b) for failure to prosecute and failure to comply with a court order.
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. Pursuant to Rule 58(a) of the Federal Rules of Civil Procedure, the court will
enter judgment by separate document.
It is so ordered this 24th day of November, 2014.
_________________________________
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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