Opinion
2:18-CV-48-M-BR
05-22-2020
MARCUS GREGORY MARCOOT, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
ORDER ACCEPTING FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
The United States Magistrate Judge entered Findings, Conclusions, and Recommendation in this case, to which no objections have been filed. The undersigned United States District Judge has reviewed the Findings, Conclusions, and Recommendation for plain error. Finding none, the undersigned District Judge ACCEPTS the Findings, Conclusions and Recommendation of the Magistrate Judge.
Considering the record in this case and pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, 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 Petitioner a certificate of appealability. The Court accepts 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 v. McDaniel, 529 U.S. 473, 484 (2000).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, as amended effective December 1, 2009, states: (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. --------
In the event Petitioner files a notice of appeal:
(X) Petitioner will proceed in forma pauperis on appeal.
( ) Petitioner will need to pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis.
SO ORDERED this 22 day of May, 2020.
/s/ _________
BARBARA M. G. LYNN
CHIEF JUDGE