Hernandez v. Davis-Director TDCJ-CID

Filing 15

***PLEASE DISREGARD, FILED IN ERROR*** ORDER ACCEPTING 13 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND DENYING A CERTIFICATE OF APPEALABILITY. (Ordered by Judge David C Godbey on 1/16/2018) (aaa) Modified on 1/16/2018 (aaa).

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DENNIS JEROME PIERCE
(TDCJ No. 1836914),
Petitioner,
V.
LORIE DAVIS, Director
Texas Department of Criminal Justice
Correctional Institutions Division,
Respondent.

§
§
§
§
§
§
§
§
§
§
§
§

No. 3:17-cv-2157-N

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE
JUDGE AND DENYING A CERTIFICATE OF APPEALABILITY
The United States Magistrate Judge made findings, conclusions, and a
recommendation in this case. An objection was filed by Petitioner. See Dkt. No. 16.
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.
To the extent that, through his objection [Dkt. No. 16], Petitioner moves for
abatement and declaratory and injunctive relief, that motion is DENIED for the
reasons stated in the Findings, Conclusions, and Recommendation of the United
States Magistrate Judge. Petitioner’s habeas application under 28 U.S.C. § 2254 is
1

clearly time-barred.
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 in support of its finding that Petitioner has
failed to show that reasonable jurists would find “it debatable whether the petition
[currently] states a valid claim of the denial of a constitutional right” and “debatable
whether [this Court] was correct in its procedural ruling” – that Petitioner’s habeas
application is barred by the statute of limitations. Slack v. McDaniel, 529 U.S. 473,
484 (2000).1
In the event that Petitioner will file a notice of appeal, the Court notes that he
shall either pay the appellate filing fee of $505.00 or move for leave to proceed in

Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended effective on
December 1, 2009, reads as follows:
1

(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

forma pauperis on appeal.
SO ORDERED this 16th day of January, 2018.

____________________________________
DAVID C. GODBEY
UNITED STATES DISTRICT JUDGE

3