Polk v. Director, TDCJ-CID

Filing 13

ORDER ACCEPTING 12 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. By separate judgment, the petitioners case will be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b). The Court DENIES a certificate of appealability. (Ordered by Judge Ada Brown on 5/10/2024) (kaf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JAMES LEE POLK, #1533696,
Petitioner,
v.
DIRECTOR, TDCJ-CID
Respondent.

§
§
§
§
§
§
§
§
§

No. 3:24-cv-00355-E (BT)

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
After reviewing all relevant matters of record in this case, including the Findings,
Conclusions, and Recommendation of the United States Magistrate Judge and any objections
thereto, in accordance with 28 U.S.C. § 636(b)(1), the undersigned District Judge is of the
opinion that the Findings and Conclusions of the Magistrate Judge are correct, and they are
accepted as the Findings and Conclusions of the District Judge. By separate judgment, the
petitioner’s case will be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b).
Further, considering the record in this case and pursuant to Federal Rule of Appellate
Procedure 22(b), Rule 11(a) of the Rules Governing Sections 2254 and 2255 Proceedings for 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 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

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Page 1 of 2

whether [this Court] was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

484 (2000). 1
SIGNED this 10th day of May, 2024

1

Rule 11 of the Rules Governing §§ 2254 and 2255 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.

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Page 2 of 2