Foster v. Miller

Filing 8

ORDER ACCEPTING 6 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND DENYING A CERTIFICATE OF APPEALABILITY. (Ordered by Senior Judge A. Joe Fish on 11/14/2023) (oyh)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

RONALD DWAYNE FOSTER,
TDCJ No. 1274137,
Petitioner,
VS.
DIRECTOR, TDCJ-CID,
Respondent.

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CIVIL ACTION NO.
3:23-CV-2263-G-BN

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE
JUDGE AND DENYING A CERTIFICATE OF APPEALABILITY
The United States Magistrate Judge made findings, conclusions, and a
recommendation in this case. Objections were filed. The District Court reviewed de
novo those portions of the proposed findings, conclusions, and recommendation to
which objection was made, and reviewed the remaining proposed findings,
conclusions, and recommendation for plain error. Finding no error, 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. 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 Petitioner has
failed to show that reasonable jurists would find “it debatable whether the petition
states a valid claim of the denial of a constitutional right” or “debatable whether [this
court] was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000).*
But, if Petitioner elects to file a notice of appeal, Petitioner must either pay

*

Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended
effective on December 1, 2009, 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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the appellate filing fee or move for leave to proceed in forma pauperis on appeal.
SO ORDERED.
November 14, 2023.
________________________________
A. JOE FISH
Senior United States District Judge

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