Taylor v. State of Texas

Filing 43

Order Accepting 39 Findings and Recommendations and Denying Certificate of Appealability. Accordingly, the 38 Motion to Vacate the Judgment Federal Rules of Civil Procedure 60(b)(6) and 60(d)(3) is DENIED. The Court further DIRECTS the Clerk of Court to, solely for statistical purposes, REOPEN and then CLOSE this case based on this order. (Ordered by Judge David C Godbey on 3/21/2022) (axm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DEMARCUS ANTONIO TAYLOR,
TDCJ No. 2082883,
Petitioner,
V.
DIRECTOR, TDCJ-CID,
Respondent.

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No. 3:17-cv-1153-N

ORDER
As to Petitioner Demarcus Antonio Taylor’s motion to vacate the judgment
under Federal Rules of Civil Procedure 60(b)(6) and 60(d)(3) [Dkt. No. 38] (the
Motion), the United States Magistrate Judge made findings, conclusions, and a
recommendation. Objections were filed. 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.
Accordingly, the Motion 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 §§ 2254 and 2255 proceedings,
and 28 U.S.C. § 2253(c), the Court DENIES a certificate of appealability as to its
denial of the Motion. 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 Petitioner has failed to show that reasonable jurists would find “it
debatable whether the petition states a valid claim of the denial of a constitutional
right” or “debatable whether [this Court] was correct in its procedural ruling.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
But, insofar as Petitioner does appeal the denial of the Motion, the Court
prospectively DENIES Petitioner leave to appeal in forma pauperis (IFP) and
CERTIFIES, under 28 U.S.C. § 1915(a)(3), and as fully explained in the applicable
findings, conclusions, and recommendation that any appeal would not be taken in
good faith.
Petitioner may challenge this finding under Baugh v. Taylor, 117 F.3d 197 (5th
Cir. 1997), by filing a motion to proceed IFP on appeal with the Clerk of the Court,
U.S. Court of Appeals for the Fifth Circuit, within 30 days of this order. See, e.g.,
Dobbins v. Davis, 764 F. App’x 433, 434 (5th Cir. 2019) (per curiam) (applying Baugh
to state prisoner’s appeal in federal habeas action).
The Court further DIRECTS the Clerk of Court to, solely for statistical
purposes, REOPEN and then CLOSE this case based on this order.
SO ORDERED this 21st day of March, 2022.

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DAVID C. GODBEY
UNITED STATES DISTRICT JUDGE

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