Whitfield v. USA

Filing 13

Order Adopting 11 Findings and Recommendations and Denying Certificate of Appealability. (Ordered by Judge Sidney A Fitzwater on 8/10/2017) (axm)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION MARK D. WHITFIELD, Petitioner, v. UNITED STATES OF AMERICA, Respondent. § § § § § § § Civil No. 3:16-CV-1781-D (Criminal No. 3:14-CR-238-D-02) ORDER After making an independent review of the pleadings, files, and records in this case, and the findings, conclusions, and recommendation of the magistrate judge, the court concludes that the findings and conclusions are correct. It is therefore ordered that the findings, conclusions, and recommendation of the magistrate judge are adopted, and petitioner’s petition for habeas corpus filed pursuant to 28 U.S.C. § 2255 is dismissed with prejudice as barred by the one-year statute of limitations. See 28 U.S.C. § 2255(f). Considering the record in this case and pursuant to Fed. R. App. P. 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). If petitioner files a notice of appeal, ( ) petitioner may proceed in forma pauperis on appeal. (X) petitioner must pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis. SO ORDERED. August 10, 2017. _________________________________ SIDNEY A. FITZWATER UNITED STATES DISTRICT JUDGE 2

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