Whitehead v. Davis-Director TDCJ-CID
Order Accepting 28 Findings and Recommendations and Denying Certificate of Appealability. (Ordered by Judge David C Godbey on 12/4/2017) (aaa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
RUSSEL R. WHITEHEAD, #01909111,
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Div.,
CIVIL NO. 3:16-CV1580-N-BK
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made Findings, Conclusions, and a Recommendation
in this case. No objections were filed. The District Court reviewed the proposed Findings,
Conclusions, and Recommendation for plain error. Finding none, the Court ACCEPTS the
Findings, Conclusions, and Recommendation of the United States Magistrate.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus under 28
U.S.C. § 2254 is DENIED.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing Sections 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 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).1
If petitioner files a notice of appeal,
(X) petitioner may proceed in forma pauperis on appeal.
( ) petitioner must pay the $505.00 appellate filing fee or submit a motion to proceed in
SO ORDERED this 4th day of December, 2017.
UNITED STATES DISTRICT JUDGE
Rule 11 of the Rules 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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