Rolan v. Gordy

Full title: STEVEN ROLAN, Petitioner, v. BRYAN GORDY, Warden, Respondent.

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

Date published: Nov 2, 2020

Civil Action No. 3:20-CV-3162-C-BN (N.D. Tex. Nov. 2, 2020)

Opinion

Civil Action No. 3:20-CV-3162-C-BN

11-02-2020

STEVEN ROLAN, Petitioner, v. BRYAN GORDY, Warden, Respondent.

SAM R. CUMMINGS SENIOR UNITED STATES DISTRICT JUDGE

ORDER

Before the Court are the Findings, Conclusions, and Recommendation of the United States Magistrate Judge therein advising the Court that Petitioner's habeas petition, construed as being brought under 28 U.S.C. § 2241, should be dismissed without prejudice to Petitioner's right to pursue available state court remedies.¹

1 Petitioner filed objections to the Magistrate Judge's Findings, Conclusions, and Recommendation on October 30, 2020. See Doc. 10. --------

The Court conducts a de novo review of those portions of the Magistrate Judge's report or specified proposed findings or recommendations to which a timely objection is made. 28 U.S.C. § 636(b)(1)(C). Portions of the report or proposed findings or recommendations that are not the subject of a timely objection will be accepted by the Court unless they are clearly erroneous or contrary to law. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

After due consideration and having conducted a de novo review, the Court finds that Petitioner's objections should be OVERRULED. The Court has further conducted an independent review of the Magistrate Judge's findings and conclusions and finds no error. It is therefore ORDERED that the Findings, Conclusions, and Recommendation are hereby ADOPTED as the findings and conclusions of the Court. For the reasons stated therein, Petitioner's habeas petition, construed as being brought under 28 U.S.C. § 2241, is DISMISSED without prejudice. All relief not expressly granted herein is DENIED.

Pursuant to Rule 22 of the Federal Rules of Appellate Procedure and 28 U.S.C. § 2253(c), this Court finds that a certificate of appealability is DENIED. The Court adopts and incorporates by reference the Magistrate Judge's Findings, Conclusions, and Recommendation in support of its finding that Petitioner has failed to show that a reasonable jurist would find: (1) this Court's "assessment of the constitutional claims debatable or wrong," or (2) "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).

SO ORDERED this 2^nd day of November, 2020.

/s/_________

SAM R. CUMMINGS

SENIOR UNITED STATES DISTRICT JUDGE