Banks v. Stephens-Director TDCJ-CID
ORDER Accepting 21 Findings, Conclusions and Recommendation and Denying Certificate of Appealability. (Ordered by Judge Sam A Lindsay on 10/12/2017) (ran)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
ODIS C. BANKS,
LORIE DAVIS, Director
Texas Department of Criminal Justice,
Correctional Institutions Division,
Civil Action No. 3:16-CV-967-L
On September 13, 2017, United States Magistrate Judge Paul D. Stickney entered the
Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”),
recommending that the court deny with prejudice this habeas action, filed pursuant to 28 U.S.C. §
2254, for failure to make a substantial showing of a denial of a federal right. Petitioner filed
objections to the Report, which were docketed on September 28, 2017.
After considering the pleadings, file, record in this case, and Report, and having conducted
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. The court, therefore, denies Petitioner’s Petition for a Writ of Habeas Corpus by a Person
in State Custody (Doc. 3), and dismisses with prejudice this action.
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),
Order – Page 1
the court denies a certificate of appealability.* 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 magistrate judge’s report filed in
this case. In the event that Petitioner files a notice of appeal, he must pay the $505 appellate filing
fee or submit a motion to proceed in forma pauperis (“IFP”), unless he has been granted IFP status
by the district court.
It is so ordered this 12th day of October, 2017.
Sam A. Lindsay
United States District Judge
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows:
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
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