Payne v. Harris

Filing 21

ORDER ACCEPTING 17 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND DENYING A CERTIFICATE OF APPEALABILITY. (Ordered by Judge Reed C. O'Connor on 7/18/2017) (twd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHRISTOPHER ROMERO PAYNE,
Petitioner,
v.
LORIE DAVIS, Director, TDCJ-CID,
Respondent.

§
§
§
§
§
§
§
§
§

Civil Action No. 3:16-cv-00959-O

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 (ECF No. 17). The Court granted petitioner an extension of time to file an objection
(ECF No. 19) and petitioner filed an objection on June 6, 2017 (ECF No. 20). The Court has
concluded a de novo review of the proposed findings, conclusions and recommendation. The
Court finds that the Findings, Conclusions and Recommendation in this case is correct and is
hereby ACCEPTED as the Findings and Conclusions of the Court.
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”

1

and “debatable whether [this Court] was correct in its procedural ruling.” Slack v. McDaniel,

529 U.S. 473, 484 (2000).1
In the event that petitioner files a notice of appeal, the court notes that:
( X ) the petitioner will proceed in forma pauperis on appeal.
( ) the petitioner will need to pay the $505.00 appellate filing fee or submit a motion to proceed
in forma pauperis.
SO ORDERED on this 18th day of July, 2017.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

1

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 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.

2