Stewart v. State of Texas

Filing 12

Order Accepting 8 Findings and Recommendations on Case. The court certifies that any appeal of this action would not be taken in good faith. The court overrules 10 Petitioner's objections, denies the 3 Petition for Writ of Mandamus, and dismisses with prejudice this case as frivolous pursuant to 28 U.S.C. § 1915A(b). The court also denies 10 Petitioner's request for a trial de novo. (Ordered by Judge Sam A Lindsay on 4/2/2015) (jrr)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ETHAN TODD STEWART, 1754814,
Petitioner,
v.
STATE OF TEXAS,
Respondent.

§
§
§
§
§
§
§
§

Civil Action No. 3:15-CV-449-L

ORDER
This case was referred to Magistrate Judge Paul D. Stickney, who entered Findings,
Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on March 11,
2015, recommending that Petitioner Ethan Todd Stewart’s Petition for Writ of Mandamus be denied
and this action dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b). Petitioner
filed objections to the Report (Doc. 11), which were docketed on March 24, 2015. Petitioner also
filed a motion requesting a “trial de novo,” (Doc. 10), which was docketed on March 17, 2015.
After considering the pleadings, file, the 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. Accordingly, the court overrules Petitioner’s objections (Doc. 11), denies the Petition
for Writ of Mandamus (Doc. 3), and dismisses with prejudice this case as frivolous pursuant to 28
U.S.C. § 1915A(b). The court also denies Petitioner’s request for a “trial de novo” (Doc. 10).
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. 24(a)(3). In support of this certification, the court
accepts and incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197, 202 and

Order – Page 1

n.21 (5th Cir. 1997). The court concludes 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 clerk of the United States Court of Appeals for the Fifth
Circuit. See Baugh, 117 F.3d at 202; Fed. R. App. 24(a)(5).
It is so ordered this 2nd day of April, 2015.

_________________________________
Sam A. Lindsay
United States District Judge

Order – Page 2