Ramsey v. Erwin

Filing 7

Order Accepting 6 The Findings, Conclusions and Recommendation of the United States Magistrate Judge and Denying Certificate of Appealability. The court dismisses without prejudice this action for want of prosecution pursuant to Rule 41(b). (Ordered by Judge Sam A Lindsay on 5/29/2018) (ykp)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ELIZABETH A. RAMSEY,
Petitioner,
v.
DEBBIE ERWIN,
Respondent.

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Civil Action No. 3:17-CV-3150-L-BT

ORDER
On February 2, 2018, United States Magistrate Judge Rebecca Rutherford entered the
Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”),
recommending that the court dismiss without prejudice this habeas case, which was filed pursuant
to 28 U.S.C. § 2254, for want of prosecution under Federal Rule of Civil Procedure 41(b). No
objections to the Report were received as of the date of this order.
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, and accepts them as those of the
court. Accordingly, the court dismisses without prejudice this action for want of prosecution
pursuant to Rule 41(b).
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 (Doc. 21).1 The court determines that Petitioner has
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
Order – Page 1

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, she must pay the $505
appellate filing fee or submit a motion to proceed in forma pauperis on appeal.
It is so ordered this 29th day of May, 2018.

_________________________________
Sam A. Lindsay
United States District Judge

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