Padilla v. Stephens

Filing 109

ORDER ADOPTING REPORT AND RECOMMENDATIONS re: granting 73 MOTION for Summary Judgment with Brief in Support, 84 Report and Recommendations (Signed by Judge Andrew S Hanen) Parties notified.(mperez, 1)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
WILFRED PADILLA,
Petitioner,
VS.
LORIE DAVIS,
Respondent.

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October 11, 2017
David J. Bradley, Clerk

CIVIL NO. B-14-262

ORDER
On May 12, 2017, the United States Magistrate Judge filed a Report and Recommendation
[Doc. No. 84]. On June 5, 2017, Petitioner moved for more time to file what he called an
“Application for Certificate of Appealability and Memorandum of Law.” The Court granted this
extension. Petitioner filed a Memorandum of Law in Support of Application for Certificate of
Appealability which the Court will consider both as applying to the Request for a Certificate of
Appealability and also as his objections to the Report and Recommendation. [Doc. No. 91]
Having considered de novo the Magistrate Judge’s Report and Recommendation and the
issues and objections raised by Petitioner’s Memorandum of Law, the Court hereby adopts the
Magistrate Judge's Report and Recommendation. That being the case, the motion for summary
judgment [Doc. No. 73] filed by Respondent Lorie Davis is granted. Wilfred Padilla’s petition for
writ of habeas corpus by a person in state custody pursuant to 28 U.S.C. § 2254 is denied, as are any
other outstanding motions filed by Padilla.
Given the deference that § 2254 requires that a federal court give to a state court’s review
of its own proceedings and prior circuit precedent, this Court finds that there is no outstanding issue
that is debatable among jurists of reason. The issuance of a Certificate of Appealability is therefore
denied.

Although the court has certified that the appeal could not be taken in good faith under 28
U.S.C. § 1915(a)(3) and FED.R.APP.P. 24(a)(3), Padilla may challenge this finding pursuant to
Baugh, by filing a separate motion to proceed IFP on appeal with the Clerk of Court, U.S. Court of
Appeals for the Fifth Circuit, within 30 days of this order. The cost to file a motion to proceed on
appeal with the Fifth Circuit is calculated below.
The fee for filing a notice of appeal is $505. If Padilla chooses to appeal this Court’s rulings,
he would be assessed an initial partial fee of $61.83. The agency having custody of the prisoner
shall collect this amount from the trust fund account or institutional equivalent, when funds are
available, and forward it to the clerk of the district court.
Thereafter, Padilla shall pay the balance of the filing fees, in periodic installments. The
appellate is required to make payments of 20% of the preceding month’s income credited to the
appellant’s prison account until appellant has paid the total filing fee of $505.00. The agency having
custody of the prisoner shall collect this amount from the trust fund account or institutional
equivalent, when funds are available and when permitted by 28 U.S.C. § 1915(b)(2), and forward
it to the clerk of this district court.
If Padilla moves to proceed on appeal, the clerk shall mail a copy of this order to the inmate
accounting officer or other person(s) or entity with responsibility for collecting and remitting to the
district court interim filing payments on behalf of prisoners, as designated by the facility in which
the prisoner is currently or subsequently confined.
Signed this 11th day of October, 2017.

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Andrew S. Hanen
United States District Judge

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