Opinion
3:14-CV-0779-B
04-29-2014
ISMAEL HERNANDEZ PADILLA, #356764, Petitioner, v. WILLIAMS STEPHENS, Director TDCJ-CID, 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 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.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is DISMISSED without prejudice as duplicative. Alternatively, it is ordered that the petition is summarily DISMISSED without prejudice for lack of jurisdiction because Petitioner is no longer in custody on his aggravated rape conviction, and he has not obtained authorization to file a successive habeas petition from the Court of Appeals with respect to his aggravated robbery conviction. See 28 U.S.C. § 2244(b)(1) and (3).
It is further ordered that Petitioner is BARRED from filing any successive habeas petition in this Court challenging his aggravated robbery and aggravated rape convictions unless accompanied by a motion for leave to file.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing Sections 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 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,
( ) 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.
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JANE J. BOYLE
UNITED STATES DISTRICT JUDGE