Harrison v. USA
Filing
57
ORDER ACCEPTING 51 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND DENYING A CERTIFICATE OF APPEALABILITY. (Ordered by Senior Judge A. Joe Fish on 8/7/2019) (mla)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
EMANUEL JAMES HARRISON,
Movant,
VS.
UNITED STATES OF AMERICA,
Respondent.
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CIVIL ACTION NO.
3:15-CV-1653-G (BN)
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
AND DENYING A CERTIFICATE OF APPEALABILITY
The United States Magistrate Judge made findings, conclusions, and a
recommendation in this case. An objection was filed by the movant. The district
court reviewed de novo those portions of the proposed findings, conclusions, and
recommendation to which objection was made, and reviewed the remaining proposed
findings, conclusions, and recommendation for plain error. Finding no error, the
court ACCEPTS the findings, conclusions, and recommendation of the United States
Magistrate Judge.
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
in the United States District Court, and 28 U.S.C. § 2253(c), the court DENIES a
certificate of appealability. The court adopts and incorporates by reference the
magistrate judge’s findings, conclusions, and recommendation filed in this case in
support of its finding that movant 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).* But in the event the movant will file a notice of appeal, the court notes that
movant must pay the $505.00 filing fee or file a motion for leave to proceed in forma
pauperis on appeal.
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Rule 11 of the Rules of Governing §§ 2254 and 2255 Proceedings reads 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.
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SO ORDERED.
August 7, 2019.
___________________________________
A. JOE FISH
Senior United States District Judge
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