Lumley v. Davis-Director TDCJ-CID
Filing
24
ORDER ACCEPTING 21 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND DENYING A CERTIFICATE OF APPEALABILITY. (Ordered by Judge David C Godbey on 10/4/2019) (mla)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JASON DEAN LUMLEY,
Petitioner,
V.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional Institutions
Division,
Respondent.
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3:17-cv-03413-N-BN
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. Movant filed objections, and the District Court has made a de novo review of those
portions of the proposed findings and recommendation to which objection was made. The
Petitioner’s motion for extension of time is granted and Petitioner’s objections are deemed
timely filed. The objections are overruled, and the Court accepts the Findings, Conclusions and
Recommendation of the United States Magistrate Judge.
IT IS THEREFORE ORDERED that the petition for habeas corpus relief pursuant to 28
U.S.C. § 2254 is denied.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing Sections 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,
( ) petitioner may proceed in forma pauperis on appeal.
(X) petitioner must pay the $505.00 appellate filing fee or submit a motion to proceed in
forma pauperis.
SO ORDERED this 4th day of October, 2019.
_________________________________
DAVID C. GODBEY
UNITED STATES DISTRICT JUDGE
1
Rule 11 of the Rules 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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