Nelson v. Thaler, Director TDCJ-CID
Filing
18
Order Adopting 16 Magistrate Judge's Findings and Conclusions and Order Denying Certificate of Appealability : Petitioner Michael Scott Nelson's petition for writ of habeas corpus is DISMISSED WITH PREJUDICE. (see order for specifics) Magistrate Judge Jeffrey L Cureton no longer assigned to case. (Ordered by Judge Terry R Means on 3/12/2013) (mpw)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MICHAEL SCOTT NELSON,
VS.
RICK THALER,
Director, T.D.C.J.
Correctional Institutions Div.
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CIVIL ACTION NO.4:12-CV-734-Y
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
AND ORDER DENYING CERTIFICATE OF APPEALABILITY
In this action brought by petitioner Michael Scott Nelson
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 February 13,
2013; and
3.
The petitioner's written objections to the proposed
findings, conclusions, and recommendation of the United
States magistrate judge filed on March 6, 2013.
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.
Therefore, the findings, conclusions, and recommendation of
the magistrate judge are ADOPTED.
Petitioner Michael Scott Nelson’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 Nelson 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 February 13, 2013
Findings, Conclusions, and Recommendation of the United States
Magistrate Judge.5
Therefore, a certificate of appealability should not issue.
SIGNED March 12, 2013.
____________________________
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
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