Pitcock v. USA
ORDER Accepting 4 Findings, Conclusions, and Recommendation of the United States Magistrate Judge and Denying Certificate of Appealability. (Ordered by Judge Jane J. Boyle on 3/8/2017) (ran)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
HOWARD PITCOCK, # 38552-177
UNITED STATES OF AMERICA,
Civil Case 3:16-CV-1795-B-BK
(Criminal Case 3:09-CR-017-B-1)
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. 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 Judge.
IT IS THEREFORE ORDERED that the motion to vacate set aside or correct sentence
under 28 U.S.C. § 2255 is summarily DISMISSED WITH PREJUDICE as time barred. See
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts.
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 for 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,
petitioner may proceed in forma pauperis on appeal.
petitioner must pay the $505.00 appellate filing fee or submit a motion to proceed
in forma pauperis.
SO ORDERED this 8th day of March, 2017.
JANE J. BOYLE
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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