Smith v. Valdez

Filing 12

Order Accepting 11 Findings and Recommendations on Case. The court certifies that any appeal of this action would not be taken in good faith. (Ordered by Judge David C Godbey on 12/8/2014) (jrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KEVIN JEROME SMITH, #14001019,
Petitioner,
v.
LUPE VALDEZ, Dallas County Sheriff,
Respondent.

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3:14-CV-3233-N-BK

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made Findings, Conclusions, and a Recommendation
in this case. No objections were filed. The District Court reviewed the proposed Findings,
Conclusions, and Recommendation for plain error. Finding none, the Court ACCEPTS the
Findings, Conclusions, and Recommendation of the United States Magistrate.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus under 28
U.S.C. § 2241 is DISMISSED without prejudice for want of jurisdiction the same being moot.
The Court prospectively CERTIFIES that any appeal of this action would not be taken
in good faith. See 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3). In support of this
certification, the Court adopts and incorporates by reference the Magistrate Judge’s Findings,
Conclusions, and Recommendation. See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir.
1997). Based on the Findings and Recommendation, the Court finds that any appeal of this
action would present no legal point of arguable merit and would, therefore, be frivolous.
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).1 In the event of an appeal, Plaintiff may
challenge this certification by filing a separate motion to proceed in forma pauperis on appeal

1

Federal Rule of Appellate Procedure 4(a) governs the time to appeal an order. A timely notice
of appeal must be filed even if the district court certifies an appeal as not taken in good faith.

with the Clerk of the Court, U.S. Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at
202; FED. R. APP. P. 24(a)(5).
If petitioner files a notice of appeal,
(X) petitioner may proceed in forma pauperis on appeal.
( ) petitioner must pay the $505.00 appellate filing fee or submit a motion to proceed in
forma pauperis.
SO ORDERED this 8th day of December, 2014.

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UNITED STATES DISTRICT JUDGE