Preston v. Stephens Director TDCJ-CID
Filing
18
ORDER ACCEPTING 15 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND DENYING A CERTIFICATE OF APPEALABILITY. Petitioner's 13 Motion for Injunctive Relief is DENIED. (Ordered by Judge Barbara M.G. Lynn on 9/24/2014) (ykp)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CURTIS CHARLES PRESTON,
Petitioner,
V.
WILLIAM STEPHENS, Director
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
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No. 3:14-CV-2109-M
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. An objection was filed by Petitioner. The District Court
reviewed de novo those portions of the proposed Findings, Conclusions, and
Recommendation to which objection was 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.
Petitioner’s application for writ of habeas corpus is dismissed with prejudice
because he is not in custody for the aggravated rape sentence, and Petitioner’s
application is dismissed with prejudice because his claims regarding the sex offender
registration requirement, which caused his conviction for failure to register, are barred
by limitations. Petitioner’s Motion for Injunctive Relief [Dkt. No. 13] is DENIED.
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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:
(X)
the Petitioner will proceed in forma pauperis on appeal.
(
the Petitioner will need to pay the $505.00 appellate filing fee or submit a
)
motion to proceed in forma pauperis.
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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SO ORDERED this 24th day of September, 2014.
_________________________________
BARBARA M. G. LYNN
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF TEXAS
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