Scott v. TDCJ
Order Accepting 8 Findings and Recommendations and Denying Certificate of Appealability re: 3 Petition for Writ of Habeas Corpus, filed by John E Scott. (Ordered by Judge Sam A Lindsay on 4/10/2018) (epm)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
JOHN E. SCOTT,
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Civil Action No. 3:17-CV-2814-L-BN
The case was referred to United States Magistrate David L. Horan, who entered the Findings,
Conclusions and Recommendation of the United States Magistrate Judge (“Report”) on January 3,
2018, recommending that the court dismiss with prejudice this habeas action as time-barred. The
magistrate judge further determined that equitable tolling does not apply. The magistrate judge
further determined that tolling does not apply. Petitioner filed objections to the Report that are
insufficient to overcome the magistrate judge’s limitations or tolling determinations.
After carefully reviewing the pleadings, file, record in this case, and Report, and having
conducted a de novo review of that portion of the Report to which objection was made, the court
determines that the findings and conclusions of the magistrate judge are correct, accepts them as
those of the court, overrules Petitioner’s objections to the Report, and dismisses with prejudice this
habeas action as 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),
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 10th day of April, 2018.
Sam A. Lindsay
United States District Judge
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows:
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.
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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