Smiley v. Livingston

Filing 22

ORDER: Accepting 17 Findings and Recommendations and Denying 21 Certificate of Appealability. The court dismisses with prejudice this action as barred by applicable statute of limitations. In the event that Petitioner files a notice of appeal, he may proceed IFP on appeal.(Ordered by Judge Sam A Lindsay on 10/6/2016) (epm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
STEVE FONTAINE SMILEY,
Petitioner,
v.

LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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Civil Action No. 3:15-CV-693-L
(Consolidated with 3:15-CV-700-L
and 3:15-CV-709-L)

ORDER
On June 23, 2016, Magistrate Judge Paul D. Stickney entered the Findings, Conclusions and
Recommendation of the United States Magistrate Judge (“Report”), recommending that the court
deny the habeas petition filed in this case pursuant to 28 U.S.C. § 2254 and dismiss with prejudice
this action as time-barred. The magistrate judge further determined that Petitioner has not established
exceptional circumstances justifying equitable tolling. On August 11, 2016, Petitioner’s objections
to the Report were docketed. On the same date, Petitioner’s Motion for Certificate of Appealability
was docketed (Doc. 21).
Having reviewed the pleadings, file, record in this case, and Report, and having conducting
a de novo review of that portion of the Report to which objection was made, 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, denies the Petition for Writ of

Order – Page 1

Habeas Corpus, and dismisses with prejudice this action as barred by applicable statute of
limitations.
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 (Doc. 21).1 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 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 Report filed in this
case. In the event that Petitioner files a notice of appeal, he may proceed IFP on appeal.
It is so ordered this 6th day of October, 2016.

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Sam A. Lindsay
United States District Judge

1

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