Opinion
CIVIL ACTION NO. 3:19-CV-0351-G (BK)
04-01-2019
SEAN GOSSMAN, #48457-039, Movant, v. MARTHA UNDERWOOD, WARDEN, Respondent.
ORDER ACCEPTING FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made findings, conclusions, and a recommendation in this case. No objections were filed. The district court reviewed the proposed findings, conclusions, and recommendation for plain error. Finding none, the court ACCEPTS the findings, conclusions, and recommendation of the United States Magistrate Judge.
It is therefore ORDERED that the petition for writ of habeas corpus under 28 U.S.C. § 2241 is DISMISSED without prejudice as premature.
The court prospectively CERTIFIES that any appeal of this action would not be taken in good faith. See 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3). In support of this certification, the court adopts and incorporates by reference the magistrate judge's findings, conclusions, and recommendation. See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th Cir. 1997). Based on the findings and recommendation, the court finds that any appeal of this action would present no legal point of arguable merit and would, therefore, be frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). In the event of an appeal, plaintiff may challenge this certification by filing a separate motion to proceed in forma pauperis on appeal with the Clerk of the Court, U.S. Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; FED. R. APP. P. 24(a)(5).
Federal Rule of Appellate Procedure 4(a) governs the time to appeal an order. A timely notice of appeal must be filed even if the district court certifies an appeal as not taken in good faith. --------
If petitioner files a notice of appeal,
( ) the petitioner may proceed in forma pauperis on appeal.
(X) petitioner must pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis.
SO ORDERED. April 1, 2019.
/s/ _________
A. JOE FISH
Senior United States District Judge