Opinion
CIVIL ACTION NO. 3:18-CV-2359-G (BK)
12-03-2018
KELVIN DEVON JOHNSON, # 2179508 Petitioner, v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION DIV., 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 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.
Therefore, the petition for writ of habeas corpus is DISMISSED without prejudice for failure to exhaust state court remedies. See 28 U.S.C. § 2254 (b) and (c).
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 in the United States District Court, and 28 U.S.C. § 2253(c), the court DENIES a certificate of appealability. 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 the 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).
Rule 11 of the Rules of Governing §§ 2254 and 2255 Proceedings reads as follows:
(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.
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. December 3, 2018.
/s/ _________
A. JOE FISH
Senior United States District Judge