McKinney v. USA
ORDER ACCEPTING 3 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. (Ordered by Judge David C Godbey on 12/4/2017) (rekc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUKE WAYNE MCKINNEY, #47889-177, §
UNITED STATES OF AMERICA,
CIVIL NO. 3:16-CV-1842-N-BK
(Criminal No. 3:14-CR-065-N-1)
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 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 motion under 28 U.S.C. ' 2255 to vacate, set
aside, or correct sentence 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 prospectively 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
If petitioner files a notice of appeal, he must pay the $505.00 appellate filing fee or
submit a motion to proceed in forma pauperis.
SO ORDERED this 4th day of December, 2017.
DAVID C. GODBEY
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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