Silva v. Davis-Director TDCJ-CID
Filing
26
ORDER: Accepting 25 Findings and Recommendations and Denying Certificate of Appealability. (Ordered by Judge Sam A. Lindsay on 3/8/2021) (svc)
Case 3:18-cv-00049-L-BH Document 26 Filed 03/08/21
Page 1 of 2 PageID 783
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ARTURO SILVA, 1 ID # 1986356,
Petitioner,
v.
DIRECTOR, TDCJ-CID,
Respondent.
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Civil Action No. 3:18-CV-49-L
ORDER
On February 2, 2021, United States Magistrate Judge Irma Carrillo Ramirez entered her
Findings, Conclusions, and Recommendation (“Report”) (Doc. 25), recommending that The
Petition for a Writ of Habeas Corpus by a Person in State Custody (“Petition”) (Doc. 3) be denied
with prejudice. In his Petition, Petitioner asserts claims of illegal search and seizure in violation
of the Fourth Amendment to the United States Constitution and ineffective assistance of counsel.
Petitioner did not file any objections within the 14-day period allowed under applicable law, or
request an extension of time to do so.
After considering the Petition, record, Report, and applicable law, 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 denies the Petition and dismisses with prejudice this action and
all claims asserted by Petitioner.
1
The style of the Petition lists Petitioner’s name as “Auturo” Silva, but he signed it as
“Arturo” Silva. The court believes that Petitioner is the best person to know the correct spelling of
his first name. Accordingly, the court directs the clerk of court to amend the docket sheet and spell
Petitioner’s first name as “Arturo.”
Order – Page 1
Case 3:18-cv-00049-L-BH Document 26 Filed 03/08/21
Page 2 of 2 PageID 784
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. § 253(c),
the court denies a certificate of appealability. 2 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 filed in this case. In the
event that a notice of appeal is filed, Petitioner must pay the $505 appellate filing fee or submit a
motion to proceed in forma pauperis on appeal.
It is so ordered this 8th day of March, 2021.
_________________________________
Sam A. Lindsay
United States District Judge
2
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
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