Gaines v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BARRY GAINES, §

#19045055, §

Petitioner, §

§

v. § Civil Case No. 3:19-CV-3051-N-BK

§

SHERIFF MARIAN BROWN, §

Respondent. §

ORDER ACCEPTING FINDINGS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The United States Magistrate Judge made Findings, Conclusions, and a Recommendation

in this case. Petitioner filed objections, and the Court has made a de novo review of those

portions of the proposed findings and recommendation to which objection was made. The

objections are overruled, and the Court ACCEPTS the Findings, Conclusions, and

Recommendation of the United States Magistrate Judge.

IT IS THEREFORE ORDERED that the petition for writ of habeas corpus under 28

U.S.C. § 2241 is DISMISSED WITHOUT PREJUDICE for failure to exhaust state court

remedies.

Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules

Governing § 2254 proceedings, and 28 U.S.C. § 2253(c), the court DENIES a certificate of

appealability. See Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998) (requiring state

pretrial detainee challenging criminal charges pending against him to obtain a certificate of

appealability following district court’s denial of petition under 28 U.S.C. § 2241). In light of the

ruling in this case, the court concludes that 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).'

If petitioner files a notice of appeal,

(X) petitioner may proceed in forma pauperis on appeal.

(_ ) petitioner must pay the $505.00 appellate filing fee or submit a motion to proceed in

forma pauperis.

SO ORDERED this 4" day of May, 2020.

UNITED S ATES DISTRICT he

Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, 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.