Smith v. Director, TDCJ-CID
Filing
32
Order Accepting 29 Findings and Recommendations and Denying Certificate of Appealability. (Ordered by District Judge Barbara M. G. Lynn on 11/18/2022) (axm)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RODNEY COLLINS SMITH,
TDCJ No. 02195008,
Petitioner,
V.
DIRECTOR, TDCJ-CID,
Respondent.
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No. 3:21-cv-1338-M-BN
ORDER ACCEPTING FINDINGS, CONCLUSIONS, 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. The District Court
reviewed the Findings, Conclusions, and Recommendation de novo. Finding no
error, the Court ACCEPTS the Findings, Conclusions, and Recommendation of the
United States Magistrate Judge.
Further, 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. 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
But, if Petitioner does file a notice of appeal, he must either pay the appellate
filing fee of $505.00 or move for leave to proceed in forma pauperis on appeal.
SO ORDERED this 18th day of November, 2022.
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended effective on
December 1, 2009, reads as follows:
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(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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