Murray v. Davis-Director TDCJ-CID

Filing 30

Order Accepting 29 Findings and Recommendations and Denying Certificate of Appealability re: 3 Petition for Writ of Habeas Corpus, filed by Dock Tyrone Murray, Jr. (Ordered by Judge Sam A Lindsay on 8/9/2018) (ndt)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DOCK TYRONE MURRAY, JR.,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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Civil Action No. 3:16-CV-3305-L-BT

ORDER
The case was referred to United States Magistrate Judge Rebecca Rutherford, who entered
the Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”)
on June 14, 2018, recommending that the court dismiss with prejudice this habeas action brought
pursuant to 28 U.S.C. § 2254, and his claims based on alleged ineffective assistance of counsel, trial
court error, actual innocence, and Brady evidence, because he “failed to make a substantial showing
of the denial of a federal right.” Report 31. No objections to the Report were filed.
After carefully reviewing the pleadings, file, record in this case, and Report, the court
determines that the findings and conclusions of the magistrate judge, are correct, accepts them as
those of the court, and dismisses with prejudice this habeas 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 magistrate judge’s Report filed
in this case. In the event that Petitioner files a notice of appeal, he must pay the $505 appellate filing
fee or submit a motion to proceed in forma pauperis on appeal.
It is so ordered this 9th day of August, 2018.

_________________________________
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