Highman v. Johnson

Full title: PATRICK ANDREW HIGHMAN, VS. GARY JOHNSON, DIRECTOR, T.D.C.J.…

Court: United States District Court, N.D. Texas

Date published: Jul 16, 2001

CIVIL ACTION NO. 4:00-CV-1445-Y (N.D. Tex. Jul. 16, 2001)

Opinion

CIVIL ACTION NO. 4:00-CV-1445-Y

July 16, 2001

ORDER THAT CERTIFICATE OF APPEALABILITY SHOULD NOT ISSUE and CORRECTION OF OMITTED WORD FROM MAY 31, 2001 ORDER (With special instructions to the clerk of Court)

TERRY MEANS, District Judge

On July 2, 2001, petitioner Patrick Andrew Highman filed a notice of appeal from this Court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the May 31, 2001 Order Adopting Magistrate Judge's Findings and Conclusions.¹ 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 The COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right."³ When a district court has rejected the constitutional claims on the merits, the COA will issue only if the petitioner "demonstrates that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. "⁴

1 It has been brought to the Court's attention that at the very end of page two of the three-page May 31 order, a part of a word is missing. Rather than stating ". . . Highman's initial state writ application ing the effectiveness of counsel on appeal . . .," such sentence should actually read: "Highman's initial state writ application challenging the effectiveness of counsel on appeal. . . ." The Court apologizes to the parties for any confusion caused by this clerical omission of the complete word "challenging" from the final line of page 2. The clerk of Court is directed to docket this correction in the docket entry for the May 31, 2001 Order Adopting Magistrate Judge's Findings and Conclusions.

2 See FED. R. APP. P. 22(b).

3 28 U.S.C.A. § 2253(c)(2) (West Supp. 2000).

4 Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Upon review and consideration of the record in the above-referenced case as to whether petitioner Highman has made these showings, the Court determines that a certificate of appealability should not issue for the reasons stated in the May 10, 2001 Findings, Conclusions and Recommendation of the Magistrate Judge and the reasons set forth in this Court's May 31, 2001 Order Adopting Magistrate Judge's Findings and Conclusions.⁵

5 See FED. R. APP. P. 22(b); see also 28 U.S.C.A. § 2253(c)(2) (West Supp. 2000).

It is therefore ORDERED that a certificate of appealability should not issue.