Opinion
CRIMINAL ACTION NO. 3:02-CR-328-G
08-30-2012
UNITED STATES OF AMERICA, Plaintiff, v. DAVID RAY WALLACE, Defendant.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE
JUDGE, AND DENYING A CERTIFICATE OF APPEALABILITY
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 Judge.
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, 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 defendant 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 Cases, as amended effective on December 1, 2009, 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.
In the event the defendant will file a notice of appeal, the court notes that
() the defendant will proceed in forma pauperis on appeal.
(X) the defendant will need to pay the $455.00 appellate filing fee or submit a motion to proceed in forma pauperis.
Because there is no filing fee for a section 2255 motion, defendant's motion for leave to proceed in forma pauperis (docket entry 91) is DENIED as unnecessary. The clerk is instructed to open a new civil case for statistical purposes, to directly assign the case to Senior District Judge A. Joe Fish and Magistrate Judge Jeff Kaplan, and to terminate these motions in the criminal case.
SO ORDERED.
______________________
A. JOE FISH
Senior United States District Judge