Palmer v. The State of Texas

• Court: District Court, N.D. Texas
• Decided: March 17, 2021
• Docket: 3:20-cv-03594
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

HAXANS WALDELL PALMER, § #18051523, § § Petitioner, § § V. § No. 3:20-cv-3594-E § THE STATE OF TEXAS, § § Respondent. §

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. “[T]he Rule 41(b) dismissal of [a] § 2254 petition without prejudice is appealable, 28 U.S.C. §§ 1291, 2253(a), and a [certificate of appealability (COA)] is required for [petitioner] to proceed. § 2253(c)(1)(A).” Wyatt v. Thaler, 395 F. App’x 113, 114 (5th Cir. 2010) (per curiam). 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 COA. The Court adopts and 1 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 that reasonable jurists would find “it debatable whether the petition states a

valid claim of the denial of a constitutional right” or “debatable whether [this Court] was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).1 But, if Petitioner elects to file a notice of appeal, he must either pay the $505 appellate filing fee or move for leave to appeal in forma pauperis. SO ORDERED this 17th day of March, 2021.

____________________________________ ADA BROWN UNITED STATES DISTRICT JUDGE

1 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. 2