Rubio v. Johnson et al

Filing 5

Order Accepting 4 Findings and Recommendations and Denying Certificate of Appealability re: 3 Petition for Writ of Habeas Corpus, filed by Ace Rubio, and dismissing out prejudice this action as premature. (Ordered by Judge Sam A. Lindsay on 3/31/2021) (chmb)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ACE RUBIO, Petitioner, v. TRENESHA JOHNSON and JOHN CREUZOT, Respondents. ' ' ' ' ' ' ' ' ' ' Civil Action No. 3:21-CV-556-L-BN ORDER The Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 4) was entered on March 12, 2021. The Report recommends that court deny Petitioner’s writ of habeas corpus made pursuant to 28 U.S.C. § 2241 (“Motion”) (Doc. 3) and dismiss without prejudice this habeas action as premature. No objections to the Report were filed as of the date of this order, and the time to do so has passed. Having considered Petitioner’s Motion (Doc. 3), the 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 denies Petitioner’s Motion (Doc. 3) and dismisses without prejudice this action as premature. 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), Order - Page 1 the court denies a certificate of appealability. * 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. It is so ordered this 31st day of March, 2021. _________________________________ Sam A. Lindsay United States District Judge * 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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