Pope v. Davis-Director TDCJ-CID

Filing 13

Order Accepting 10 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE and Denying Certificate of Appealability. The court overrules Petitioner's 11 objection. (Ordered by Judge Sam A Lindsay on 5/11/2017) (twd)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION CECIL ANDREW POPE, Petitioner, v. LORIE DAVIS, Director, TDCJ-CID, Respondent. § § § § § § § § Civil Action No. 3:16-CV-2150-L ORDER This habeas case, which was brought pursuant to 28 U.S.C. § 2254, was referred to Magistrate Judge Renee Harris Toliver, who entered the Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Report”) on February 6, 2017. The Report recommends that the court dismiss with prejudice this action pursuant 28 U.S.C. § 2244(d), as barred by the one-year limitations period. Petitioner filed an objection to the Report. The objection does not address a specific portion of the Report, and it does not state a legal basis for objecting to the Report. The court, therefore, overrules Petitioner’s objection. Having reviewed the file, Report, record, applicable law, and conducting a de novo review of Petitioner’s objection, the court determines that the findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. Accordingly, the court denies as timebared Petitioner’s Petition for a Writ of Habeas Corpus by a Person in State Custody (Doc. 3); and dismisses with prejudice this action. 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), Order – Page 1 the court denies a certificate of appealability. * The court determines that 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). In support of this determination, the court accepts and incorporates by reference the Report filed in this case. In the event that Petitioner files a notice of appeal, he may proceed in forma pauperis on appeal. It is so ordered this 11th day of May, 2017. _________________________________ Sam A. Lindsay United States District Judge * Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides 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. Order – Page 2

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