Briones v. Director, TDCJ-CID, No. 3:2021cv00957 - Document 23 (N.D. Tex. 2024)
Court Description: Order Accepting 22 Findings and Recommendations and Denying Certificate of Appealability. (Ordered by Judge Jane J Boyle on 1/24/2024) (ndt)
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Briones v. Director, TDCJ-CID Doc. 23 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION JOSE NIEVES BRIONES, ID # 01219879, Petitioner, vs. DIRECTOR, TDCJ-CID Respondent. ) ) ) ) ) ) ) ) ) No. 3:21-CV-00957-B-BN ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY After reviewing all relevant matters of record in this case, including the Findings, Conclusions, and Recommendation of the United States Magistrate Judge and any objections thereto, in accordance with 28 U.S.C. § 636(b)(1), the Court is of the opinion that the Findings and Conclusions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of the Court. For the reasons stated in the Findings, Conclusions, and Recommendation of the United States Magistrate Judge, the petitioner’s application for federal habeas relief pursuant to 28 U.S.C. § 2254 is denied and dismissed with prejudice as time-barred. A judgment will issue separately. In accordance with Fed. R. App. P. 22(b) and 28 U.S.C. § 2253(c) and after considering the record in this case and the recommendation of the Magistrate Judge, the movant is DENIED a Certificate of Appealability. The Court adopts and incorporates by reference the Magistrate Judge’s Findings, Conclusions, and Recommendation in support of its finding that the movant 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 Dockets.Justia.com 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).1 But, if the movant does file a notice of appeal, he must either pay the appellate filing fee of $505.00 or move for leave to proceed in forma pauperis on appeal. SIGNED this 24th day of January, 2024. _________________________________ JANE J. BOYLE UNITED STATES DISTRICT JUDGE 1 Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, 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
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