Opinion
3:22-cv-403-E
04-11-2022
ISMAEL HERNANDEZ PADILLA, TDCJ No. 356764, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.
ORDER
ADA BROWN UNITED STATES DISTRICT JUDGE
The United States Magistrate Judge made findings, conclusions, and a recommendation. 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.
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 to the extent one is required to appeal in this case. The Court adopts and incorporates by reference the Magistrate Judge's Findings, Conclusions, and Recommendation filed in this case in support of its finding that Petitioner has failed to show that reasonable jurists would find “it debatable whether the [construed] petition states a valid claim of the denial of a constitutional right” or “debatable whether [this Court] was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
But, insofar as Petitioner does appeal, the Court prospectively DENIES Petitioner leave to appeal in forma pauperis (IFP) and CERTIFIES, under 28 U.S.C. § 1915(a)(3), and as fully explained in the applicable findings, conclusions, and recommendation that any appeal would not be taken in good faith.
Petitioner may challenge this finding under Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997), by filing a motion to proceed IFP on appeal with the Clerk of the Court, U.S. Court of Appeals for the Fifth Circuit, within 30 days of this order. Cf. Dobbins v. Davis, 764 Fed.Appx. 433, 434 (5th Cir. 2019) (per curiam) (applying Baugh to state prisoner's appeal in federal habeas action).
SO ORDERED: