Tolbert v. USA

Filing 7

ORDER ACCEPTING 4 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND PROSPECTIVELY CERTIFYING ANY APPEAL AS NOT TAKEN IN GOOD FAITH. (Ordered by Chief Judge Jorge A Solis on 4/16/2015) (ykp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RICKY WAYNE TOLBERT, JR.,
Inmate No. 32656-177,
Petitioner,
v.
USA,
Respondent.

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No. 3:15-CV-0234-P

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE, AND
PROSPECTIVELY CERTIFYING ANY APPEAL AS NOT TAKEN IN GOOD FAITH
The United States Magistrate Judge has issued Findings, Conclusions and Recommendation
(“FCR”) in this case. Petitioner has filed objections to the FCR. After reviewing all relevant matters
of record in this case, including the FCR and the filed objections to the FCR, in accordance with 28
U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(3), the Court finds that the Findings and Conclusions
of the Magistrate Judge are correct. It has conducted a de novo review and determination as to the
issues to which Petitioner has specifically objected. Having reviewed the remainder of the Findings,
Conclusions, and Recommendation of the Magistrate Judge for clear error, it is satisfied that there
is no clear error on the face of the record. Accordingly, the Court hereby ACCEPTS the Findings
and Conclusions of the Magistrate Judge as the Findings and Conclusions of the Court and DISMISSES WITHOUT PREJUDICE the petition for writ of habeas corpus filed under 28 U.S.C. §
2241 for want of jurisdiction.
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 & 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). In the event of an appeal, Plaintiff may challenge this certification by filing a separate
motion to proceed in forma pauperis on appeal 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).
In the event Petitioner files a notice of appeal, he must pay the $505.00 appellate filing fee
or submit a motion to proceed in forma pauperis.
SO ORDERED this 16th day of April, 2015.

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JORGE A. SOLIS
UNITED STATES DISTRICT JUDGE

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