Tolbert v. USA
ORDER ACCEPTING 6 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND DENYING A CERTIFICATE OF APPEALABILITY. In the event petitioner will file a notice of appeal, the court notes that petitioner must pay the $505.00 filing fee or file a motion for leave to proceed in forma pauperis on appeal. (Ordered by Senior Judge A. Joe Fish on 2/7/2017) (epm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
UNITED STATES OF AMERICA,
CIVIL ACTION NO.
CRIMINAL ACTION NO.
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.
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), 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).*
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended
effective on December 1, 2009, 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.
In the event petitioner will file a notice of appeal, the court notes that
petitioner must pay the $505.00 filing fee or file a motion for leave to proceed in
forma pauperis on appeal.
February 7, 2017.
A. JOE FISH
Senior United States District Judge
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