Smith v. Haynes
Filing
11
ORDER accepting 10 Findings, Conclusions, and Recommendation; Denying Certificate of Appealability. (Ordered by Senior Judge A. Joe Fish on 5/1/2018) (ran)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ROSHAUN NICHOLAS SMITH,
Petitioner,
VS.
LORIE DAVIS, Director, TDCJ-CID,
Respondent.
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CIVIL ACTION NO.
3:17-CV-2425-G (BK)
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made findings, conclusions, and a
recommendation in this case. No objections were filed. The district court reviewed
the proposed findings, conclusions, and recommendation for plain error. Finding
none, the court ACCEPTS the findings, conclusions, and recommendation of the
United States Magistrate Judge.
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
in the United States District Court, 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 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).1
If petitioner files a notice of appeal,
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the petitioner may proceed in forma pauperis
on appeal.
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petitioner must pay the $505.00 appellate
filing fee or submit a motion to proceed in
forma pauperis.
SO ORDERED.
May 1, 2018.
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A. JOE FISH
Senior United States District Judge
1
Rule 11 of the Rules of Governing §§ 2254 and 2255 Proceedings reads 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.
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