Sivongsak v. Thaler, Director TDCJ-CID

Filing 12

ORDER ADOPTING 10 MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS AND ORDER DENYING CERTIFICATE OF APPEALABILITY: Petitioner Stephen Sivongsak's petition for writ of habeas corpus is DISMISSED WITH PREJUDICE. A certificate of appealability should not issue. (Ordered by Judge Terry R Means on 1/12/2012) (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
STEPHEN SIVONGSAK,
VS.
RICK THALER,
Director, T.D.C.J.
Correctional Institutions Div.

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CIVIL ACTION NO.4:11-CV-604-Y

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
AND ORDER DENYING CERTIFICATE OF APPEALABILITY
In this action brought by petitioner Stephen Sivongsak under
28 U.S.C. § 2254, the Court has made an independent review of the
following matters in the above-styled and numbered cause:
1.

The pleadings and record;

2.

The proposed findings, conclusions, and recommendation of
the United States magistrate judge filed on November 28,
2011; and

3.

The petitioner's written objections to the proposed
findings, conclusions, and recommendation of the United
States magistrate judge filed on December 22, 2011.

The Court, after de novo review, concludes that Petitioner’s
objections must be overruled, and that the petition for writ of
habeas corpus should be dismissed with prejudice as time-barred
under 28 U.S.C. § 2244, for the reasons stated in the magistrate
judge's findings and conclusions, and for the reasons stated in the
Respondent’s preliminary response at pages 2-5.
Therefore, the findings, conclusions, and recommendation of
the magistrate judge are ADOPTED.
Petitioner Stephen Sivongsak’s petition for writ of habeas
corpus is DISMISSED WITH PREJUDICE.
Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal
may not proceed unless a certificate of appealability (COA) is

issued under 28 U.S.C. § 2253.1 Rule 11 of the Rules Governing
Section 2254 Proceedings now requires that the Court “must issue or
deny a certificate of appealability when it enters a final order
adverse to the applicant.”2 The COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.”3 A petitioner satisfies this standard by showing
“that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists of reason
could

conclude

the

issues

presented

are

adequate

to

deserve

encouragement to proceed further.”4
Upon review and consideration of the record in the abovereferenced case as to whether petitioner Sivongsak has made a
showing

that

reasonable

jurists

would

question

this

Court’s

rulings, the Court determines he has not and that a certificate of
appealability should not issue for the reasons stated in the
November 28, 2011 Findings, Conclusions, and Recommendation of the
United States Magistrate Judge.5
Therefore, a certificate of appealability should not issue.
SIGNED January 12, 2012.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

1

See Fed. R. App. P. 22(b).

2

RULES GOVERNING SECTION 2254 PROCEEDINGS IN THE UNITED STATES DISTRICT COURTS, RULE
11(a) (December 1, 2009).
3

28 U.S.C.A. § 2253(c)(2)(West 2006).

4

Miller-El v. Cockrell, 537 U.S. 322, 326 (2003), citing Slack v. McDaniel,
529 U.S. 473, 484 (2000).
5

See Fed. R. App. P. 22(b); see also 28 U.S.C.A. § 2253(c)(2)(West 2006).

2