McDavid v. Wilson
Filing
35
Order Accepting Findings and Recommendations and Denying Certificate of Appealability: The court determines that the 33 findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. The court denies Petitio ner's 1 Petition for Writ of Habeas Corpus and dismisses with prejudice this habeas action and all claims asserted by Petitioner. Further, the court directs the clerk of the court to term all pending motions in this case. (Ordered by Judge Sam A. Lindsay on 11/15/2021) (svc)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JARVIS DUNK McDAVID,
Petitioner,
v.
DIRECTOR, TDCJ-CID and
J. WILSON, Warden,
Respondent.
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Civil Action No. 3:17-CV-1843-L-BT
ORDER
On October 15, 2021, the Findings, Conclusions and Recommendation of the United States
Magistrate Judge (“Report”) (Doc. 33) was entered recommending that the court deny Petitioner
habeas petition (Doc. 1) and dismiss with prejudice this habeas action and Petitioner’s claims that:
(1) the trial court erred; (2) the prosecutor engaged in misconduct; and (3) his attorney provided
ineffective assistance of counsel. No objections to the Report were received as of the date of this
order, and the deadline for filing objections has expired.
Having considered Petitioner’s habeas petition (Doc. 1), the file, record in this case, and
Report, 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 Petitioner’s habeas petition
(Doc. 1) and dismisses with prejudice this habeas action and all claims asserted by Petitioner.
Further, the court directs the clerk of the court to term all pending motions in this case.
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. 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 15th day of November, 2021.
_________________________________
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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