Barrientos v. Watkins
Filing
12
ORDER Accepting 6 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: The court denies as moot 11 Motion for 30 Days More to File Appeal/Objection to Findings, Conclusions, and Recommendation. The court also declines to appoint Petitioner counsel and denies Petitioner's 11 Motion to Appoint Counsel. The court denies a certificate of appealability. (Ordered by Judge Sam A Lindsay on 1/20/2015) (twd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ROBERTO BARRIENTOS, #14035462,
Petitioner,
v.
CRAIG WATKINS, District Attorney’s
Office,
Respondent.
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Civil Action No. 3:14-CV-4136
ORDER
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
21, 2014, recommending that this action be dismissed without prejudice for failure to exhaust state
court remedies and that Petitioner’s remaining claims, if any, be dismissed without prejudice and
resubmitted in a new habeas corpus petition and/or a civil rights complaint.1 Plaintiff failed to timely
object, as his objection is postmarked for December 23, 2014, and the magistrate judge issued her
Report on November 21, 2014. Although Petitioner’s objection is untimely, the court will,
nevertheless, consider it.
In his objection, Petitioner asserts that he has exhausted his state remedies. Petitioner’s
objection is without merit, as he provides no affidavit, declaration, or any evidence that he has in fact
exhausted his state remedies. Accordingly, the court overrules Plaintiff’s objection.
1
Petitioner’s motion is not a model of clarity. As the magistrate judge points out, “To the extent Petitioner
seeks to challenge his other prior convictions and[/]or raise civil rights claims against the Dallas County District Attorney
or other individual or entity, his claims are not cognizable in this action.” Report 2. Accordingly, the magistrate judge
recommends that the court dismiss without prejudice these claims and resubmit them in a new habeas petition. Id.
Order - Page 1
On January 15, 2015, Petitioner filed his Motion to Appoint Counsel and Motion for 30 Days
More to File Appeal/Objection to Findings, Conclusions, and Recommendation (Doc. 11). The court
has already considered Petitioner’s untimely objection to the Report and denies as moot this request.
The court declines to grant an additional 30 days with respect to any appeal, as the time to appeal
does not begin to run until the court issues judgment. Accordingly, the court denies this request.
The court also declines to appoint Petitioner counsel and denies Petitioner’s Motion to Appoint
Counsel.
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 petition for writ of habeas corpus
for failure to exhaust state remedies; and dismisses without prejudice Petitioner’s remaining
claims, if any.
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.2 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
2
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
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 20th day of January, 2015.
_________________________________
Sam A. Lindsay
United States District Judge
Order - Page 3
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