Davis v. Director, TDCJ-CID
Filing
12
ORDER ACCEPTING 8 FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE and Denying Certificate of Appealability. (Ordered by Judge David C Godbey on 10/30/2020) (twd)
Case 3:20-cv-01776-N-BK Document 12 Filed 10/30/20
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BENJAMIN DAVIS, #1734875,
Petitioner,
v.
DIRECTOR, TDCJ-CID,
Respondent.
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CIVIL CASE NO. 3:20-CV-1776-N-BK
ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made Findings, Conclusions, and a Recommendation
in this case. Petitioner filed objections, and the Court has made a de novo review of those
portions of the proposed findings and recommendation to which objection was made. The
objections are overruled, and the Court ACCEPTS the Findings, Conclusions, and
Recommendation of the United States Magistrate Judge.
Therefore, the petition for writ of habeas corpus is DISMISSED WITHOUT
PREJUDICE for failure to exhaust state court remedies. See 28 U.S.C. § 2254(b) and (c); Rule
4(b) of the RULES GOVERNING SECTION 2254 PROCEEDINGS.1
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing Section 2254 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
1
Davis is cautioned that the 1996 amendments to the habeas corpus statute impose a one year
statute of limitations for filing habeas corpus petitions in federal court, see 28 U.S.C. § 2254(d),
and that this provision is applicable to this petition as well as to any other petition that he may
file in this court.
Case 3:20-cv-01776-N-BK Document 12 Filed 10/30/20
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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 30th day of October, 2020.
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UNITED STATES DISTRICT JUDGE
1
Rule 11 of the Rules Governing § 2254 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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