Lockhart v. USA
Order Accepting 17 Findings and Recommendations and Denying Certificate of Appealability. (Ordered by Senior Judge A. Joe Fish on 8/29/2017) (aaa)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
EUGENE LOCKHART, JR.,
UNITED STATES OF AMERICA,
CIVIL ACTION NO.
CRIMINAL ACTION NO.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
After reviewing all relevant matters of record in this case, including the
findings, conclusions, and recommendation of the United States Magistrate Judge
and any objections thereto, in accordance with 28 U.S.C. § 636(b)(1), the court is of
the opinion that the findings and conclusions of the magistrate judge are correct and
they are accepted as the findings and conclusions of the court. For the reasons stated
in the findings, conclusions and recommendation of the United States Magistrate
Judge, the motion to vacate is DENIED with prejudice.
In accordance with FED. R. APP. P. 22(b) and 28 U.S.C. § 2253(c) and after
considering the record in this case and the recommendation of the magistrate judge,
the court DENIES petitioner 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
(b) Time to Appeal. Federal Rule of
Appellate Procedure 4(a) governs the time to
In the event that the petitioner files a notice of appeal, he must pay the
$505.00 appellate filing fee or submit a motion to proceed in forma pauperis that is
accompanied by a properly signed certificate of inmate trust account.
August 29, 2017.
A. JOE FISH
Senior United States District Judge
appeal an order entered under these rules. A
timely notice of appeal must be filed even if
the district court issues a certificate of
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