Alexander v. Davis-Director TDCJ-CID

Filing 31

Order Accepting 30 Findings and Recommendations and Denying Certificate of Appealability. (Ordered by Judge Sam A Lindsay on 7/1/2019) (axm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ARTRAI TURONE ALEXANDER,
Petitioner,
v.
LORIE DAVIS, Director, Texas
Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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Civil Action No. 3:17-CV-3139-L

ORDER
The Findings, Conclusions and Recommendation of the United States Magistrate Judge
(“Report”) (Doc. 30) was entered on April 22, 2019, recommending that the court deny Petitioner’s
habeas petition as amended under 28 U.S.C. § 2254 and dismiss with prejudice the new claims
asserted by him for ineffective assistance of counsel(claim 1(b) and 1(c)), prosecutorial misconduct
(claim 2), double jeopardy (claim 3), and justified flight (claim 4) as time-barred and not equitably
tolled. The Report recommends that the court also dismiss with prejudice Petitioner’s original
ineffective assistance claim based on the failure to argue temporary insanity (claim 1(a)) and his
aggravated sentence claim (claim 5) as unexhausted, procedurally barred, and without merit because
he “fails to demonstrate that the state court decision [denying his state habeas petition] was contrary
to, or involved an unreasonable application of, clearly established federal law, or was based on an
unreasonable determination of facts,” and, he thus, “fails to show there was no reasonable basis for
the state court to deny relief.” Report 9. No objections to the Report were filed.

Order – Page 1

Having reviewed the pleadings, file, record in this case, and Report, the court determines that
the findings and conclusions of the magistrate judge are correct; accepts them as those of the court;
denies his habeas petition as amended; and dismisses with prejudice all claims asserted by
Petitioner and this action for the reasons set forth in the Report.
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.1 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.

1

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

It is so ordered this 1st day of July, 2019.

_________________________________
Sam A. Lindsay
United States District Judge

Order – Page 3