Allen v. Davis
Filing
12
Order Accepting 5 Findings and Recommendations and Denying Certificate of Appealability. (Ordered by Judge Jane J Boyle on 11/9/2016) (mcrd)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHARLES ANTHONY ALLEN, SR.
(TDCJ No. 1043550),
Petitioner,
V.
LORIE DAVIS, Director
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
§
§
§
§
§
§
§
§
§
§
§
§
No. 3:16-cv-2766-B
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE AND
DENYING CERTIFICATE OF APPEALABILITY
The United States Magistrate Judge made findings, conclusions, and a recommendation in
this case. An objection was filed by Petitioner.1 The District Court reviewed de novo those portions
of the proposed findings, conclusions, and recommendation to which objection was made, and
reviewed the remaining proposed findings, conclusions, and recommendation for plain error. Finding
no error, the Court ACCEPTS the Findings, Conclusions, and Recommendation of the United
States Magistrate Judge.
Petitioner’s Motion to Grant Relief from the Judgment, invoking Federal Rule of Civil
Procedure 60(b)(4) is substantive and is construed as a successive habeas application, and the
1
On November 8, 2016, the Court granted Petitioner’s Motion to Extend Time to File Objections to the Magistrate
Judge’s F&R, giving him until December 2, 2016 to file his objections. Doc. 9. On that same date, Petitioner filed .his
objections to the F&R. Doc. 11. Accordingly, the Court proceeds to consider the F&R and Petitioner’s objections
-1-
successive habeas application is DENIED without prejudice to Petitioner’s right to seek leave from
the United States Court of Appeals for the Fifth Circuit to file such an application.
Further, 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 [Dkt.
No. 23] 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).2
In the event that Petitioner appeals, he may proceed in forma pauperis on appeal.
SO ORDERED.
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended effective on December 1, 2009,
reads as follows:
2
(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.
-2-
DATED: NOVEMBER 9, 2016.
_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?