Holland v. Stephens-Director TDCJ-CID

Filing 32

ORDER ACCEPTING 28 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND DENYING A CERTIFICATE OF APPEALABILITY. (Ordered by Senior Judge A. Joe Fish on 1/9/2017) (epm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

HOWARD HOLLAND
(TDCJ No. 1914814),
Petitioner,
VS.
LORIE DAVIS, Director, Texas
Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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CIVIL ACTION NO.
3:15-CV-2344-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 petitioner. 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,
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 the 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).*

*

Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended
effective on December 1, 2009, 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
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In the event that petitioner will file a notice of appeal, the court notes that he
must pay the appellate filing fee or move for leave to proceed in forma pauperis on
appeal.
SO ORDERED.

January 9, 2017.

___________________________________
A. JOE FISH
Senior United States District Judge

*

(...continued)
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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