Opinion
2:18-CV-055-Z
01-28-2021
STEPHEN EARL BENZENHAFER, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Before the Court are the findings, conclusions, and recommendation of the United States Magistrate Judge to dismiss the Petition for a Writ of Habeas Corpus filed by Petitioner in this case. (ECF No. 17). No objections to the findings, conclusions, and recommendation have been filed. After making an independent review of the pleadings, files, and records in this case, the Court concludes that the findings, conclusions, and recommendation of the Magistrate Judge are correct. It is therefore ORDERED that the findings, conclusions, and recommendation of the Magistrate Judge are ADOPTED, and the Petition for a Writ of Habeas Corpus is DENIED.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, and 28 U.S.C. § 2253(c), the Court denies a certificate of appealability because Petitioner has failed to make "a substantial showing of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Hernandez v. Thaler, 630 F.3d 420, 424 (5th Cir. 2011). 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 (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, 529 U.S. at 484.
If Petitioner files a notice of appeal, he must pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis on appeal.
SO ORDERED.
January 28, 2021.
/s/_________
MATTHEW J. KACSMARYK
UNITED STATES DISTRICT JUDGE