Albarran-Escobar v. District Attorney for Dallas County

Filing 7

ORDER: After reviewing the pleadings, file, record in this case, and Report, the court determines that 5 the findings and conclusions of the magistrate judge are correct, and accepts them as those of the court, and dismisses with prejudice this action as frivolous. 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. (Ordered by Judge Sam A Lindsay on 4/30/2015) (tln)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CATALINO ALBARRAN-ESCOBAR,
Petitioner,
v.
DISTRICT ATTORNEY FOR DALLAS
COUNTY,
Respondent.

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Civil Action No. 3:14-CV-4528-L-BN

ORDER
This case was referred to Magistrate Judge David L. Horan, who entered Findings,
Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on April 10,
2015, recommending that this petition be summarily dismissed.
The magistrate judge concluded that Petitioner Catalino Albarran-Escobar’s (“Petitioner”)
petition is frivolous. Petitioner argues that the District Attorney has failed to comply with the
Interstate Agreement on Detainers Act (“IADA”) by violating his right to a speedy trial. Petitioner
seeks dismissal of three criminal cases. According to the magistrate judge, before Petitioner sent
notice pursuant to IADA, he pleaded guilty to charges in one of these cases, and, in the other two
cases, the indictments were dismissed subsequent to Petitioner’s guilty plea. Accordingly, dismissal
is proper.
On April 29, 2015, Petitioner filed his objections in which he requests that the court order
the Respondent to file a response to his petition. He states that he was unaware that two of his state
cases were dismissed. He also states that these charges show up on his institutional records as still
pending and, as a result, he is suffering a prejudice. The court conducted a search of the public
Order – Page 1

records using the link provided by Magistrate Judge Horan in his Report. The search revealed that
case number F10-13164 was dismissed on motion of the district attorney on January 30, 2013, and
case number F10-13165 was dismissed on motion of the district attorney that same day. Moreover,
Petitioner pleaded guilty to the charges named in the Indictment for case number F-1013166, and
judgment was entered on January 18, 2013. Accordingly, Petitioner’s objections are moot, as the
public records, made available by the link provided in the Report, make clear that Petitioner pleaded
guilty to one of the state cases and the other two were dismissed in 2013. Petitioner may use this
order to show prison officials that the two charges he is concerned about have been dismissed, and
this should remove any prejudice that he is allegedly suffering.
After reviewing the pleadings, file, record in this case, and Report, the court determines that
the findings and conclusions of the magistrate judge are correct, and accepts them as those of the
court, and dismisses with prejudice this action as frivolous.
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 determines that Petitioner has failed to
show: (1) that reasonable jurists would find this court’s “assessment of the constitutional claims

*

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

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 30th day of April, 2015.
_________________________________
Sam A. Lindsay
United States District Judge

Order – Page 3