Darnell v. Thaler, Director TDCJ-CID

Filing 28

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS AND ORDER DENYING CERTIFICATE OF APPEALABILITY adopting 26 FINDINGS, CONCLUSIONS and RECOMMENDATIONS; denying 20 MOTION to Dismiss; denying 23 MOTION for Appointment of Counsel; de nying 24 MOTION for an Evidentiary Hearing; denying 25 MOTION for Discovery... Darnell Jr.'s petition for writ of habeas corpus under 28 USC 2254 is DENIED... a certificate of appealability should not issue for the reasons stated in the August 6, 2012 Findings... see Order for further specifics. (Ordered by Judge Terry R Means on 10/1/2012) (krg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ELIGAH DARNELL JR.

§
§
VS.
§
§
RICK THALER,
§
Director, T.D.C.J.
§
Correctional Institutions Div., §

CIVIL ACTION NO.4:12-CV-098-Y

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
AND ORDER DENYING CERTIFICATE OF APPEALABILITY
In this action brought by petitioner Eligah Darnell Jr. 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 August 6,
2012; and

3.

The petitioner's written objections to the proposed
findings, conclusions, and recommendation of the United
States magistrate judge filed on August 20, 2012.

The Court, after de novo review, concludes that Petitioner’s
objections must be overruled, that the respondent’s motion to
dismiss should be denied, and that the petition for writ of habeas
corpus should be denied, for the reasons stated in the magistrate
judge's findings and conclusions.
Therefore, the findings, conclusions, and recommendation of
the magistrate judge are ADOPTED.
The respondent’s motion to dismiss for failure to exhaust
state court remedies (doc. 20) is DENIED.

Petitioner Eligah Darnell Jr.’s petition for writ of habeas
corpus under 28 U.S.C. § 2254 is DENIED.1
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. § 2253.2 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.”3 The COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.”4 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.”5
Upon review and consideration of the record in the abovereferenced case as to whether petitioner Darnell has made a showing
that reasonable jurists would question this Court’s rulings, the

1

Darnell also filed a motion for appointment of counsel (doc. 23), a motion
for an evidentiary hearing (doc. 24). and a motion for discovery (doc. 25) After
review of these motions in light of the magistrate judge’s thorough report and
recommendation, the Court concludes that these motions must be DENIED.
2

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

3

RULES GOVERNING SECTION 2254 PROCEEDINGS IN THE UNITED STATES DISTRICT COURTS, RULE
11(a) (December 1, 2009).
4

28 U.S.C.A. § 2253(c)(2)(West 2006).

5

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

2

Court determines he has not and that a certificate of appealability
should not issue for the reasons stated in the August 6, 2012
Findings, Conclusions, and Recommendation of the United States
Magistrate Judge.6
Therefore, a certificate of appealability should not issue.
SIGNED October 1, 2012.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

6

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

3