Padilla v. Director, TDCJ-CID et al

Filing 8

Order Accepting #6 Findings, Conclusions and Recommendation of the United States Magistrate Judge and Denying Certificate of Appealability. The court certifies that any appeal of this action would not be taken in good faith. Case administratively reopened. (Ordered by Judge Brantley Starr on 5/6/2022) (mjr)

Case 3:22-cv-00583-X-BN Document 8 Filed 05/06/22

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ISMAEL HERNANDEZ PADILLA,
ID #356764,
Petitioner,
v.
DIRECTOR, TDCJ-CID; GREG
ABBOTT; and CITY TOWN OR
MUNI OF DALLAS CO DALLAS TX
Respondents.

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Civil Action No. 3:22-CV-00583-X-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.

[Doc. No. 6].

filed a notice of appeal to the Fifth Circuit.
the notice of appeal as an objection.
reiterate Padilla’s motion.

Instead of filing an objection, Padilla
[Doc. No. 7].

The Court will construe

But the notice of appeal appears to merely

[Doc. No. 5]. It does not raise a specific objection to the

magistrate judge’s findings, conclusions, or recommendation. 1

The Court has

reviewed the magistrate judge’s recommendation de novo and finds no errors.

“In order to be specific, an objection must identify the specific finding or recommendation to
which objection is made, state the basis for the objection, and specify the place in the magistrate judge’s
findings, conclusions, and recommendation where the disputed determination is found. An objection
that merely incorporates by reference or refers to the briefing before the magistrate judge is not
specific.” Doc. No. 6 at 4.
1

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Case 3:22-cv-00583-X-BN Document 8 Filed 05/06/22

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Accordingly, the Court ACCEPTS the findings, conclusions, and recommendation of
the United States Magistrate Judge.
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 to the extent
one is required to appeal in this case.

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 Padilla has failed to show that reasonable
jurists would find “it debatable whether the [construed] petition states a valid claim
of the denial of a constitutional right” or “debatable whether [this Court] was correct
in its procedural ruling.” 2
But, insofar as Padilla does appeal, the Court prospectively DENIES Padilla
leave to appeal in forma pauperis and CERTIFIES, under 28 U.S.C. § 1915(a)(3),
and as fully explained in the applicable findings, conclusions, and recommendation
that any appeal would not be taken in good faith.
Petitioner may challenge this finding under Baugh v. Taylor 3 by filing a
motion to proceed in forma pauperis on appeal with the Clerk of the Court, U.S. Court
of Appeals for the Fifth Circuit, within 30 days of this order. 4

2

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

3

117 F.3d 197 (5th Cir. 1997),

4 Cf. Dobbins v. Davis, 764 F. App’x 433, 434 (5th Cir. 2019) (per curiam) (applying Baugh to
state prisoner’s appeal in federal habeas action).

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Case 3:22-cv-00583-X-BN Document 8 Filed 05/06/22

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IT IS SO ORDERED this 6th day of May, 2022.

____________________________________
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE

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