Opinion
Civil Action 3:17-CV-1843-L-BT
11-15-2021
JARVIS DUNK McDAVID, Petitioner, v. DIRECTOR, TDCJ-CID and J. WILSON, Warden, Respondent.
ORDER
SAM A. LINDSAY UNITED STATES DISTRICT JUDGE
On October 15, 2021, the Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 33) was entered recommending that the court deny Petitioner habeas petition (Doc. 1) and dismiss with prejudice this habeas action and Petitioner's claims that: (1) the trial court erred; (2) the prosecutor engaged in misconduct; and (3) his attorney provided ineffective assistance of counsel. No objections to the Report were received as of the date of this order, and the deadline for filing objections has expired.
Having considered Petitioner's habeas petition (Doc. 1), the file, record in this case, and Report, the court determines that the findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. Accordingly, the court denies Petitioner's habeas petition (Doc. 1) and dismisses with prejudice this habeas action and all claims asserted by Petitioner. Further, the court directs the clerk of the court to term all pending motions in this case.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c),
the court denies a certificate of appealability.The court determines that Petitioner has failed to show: (1) that reasonable jurists would find this court's “assessment of the constitutional claims debatable or wrong;” or (2) that reasonable jurists would find “it debatable whether the petition states a valid claim of the denial of a constitutional right” and “debatable whether [this court] was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In support of this determination, the court accepts and incorporates by reference the Report. In the event that Petitioner files a notice of appeal, he must pay the $505 appellate filing fee or submit a motion to proceed in forma pauperis on appeal.
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows:
It is so ordered.
(a) Certificate of Appealability. The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue. If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. A motion to reconsider a denial does not extend the time to appeal.
(b) Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to appeal an order entered under these rules. A timely notice of appeal must be filed even if the district court issues a certificate of appealability.