# Gaines v. Brown

> District Court, N.D. Texas · May 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10448636

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** May 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10448636

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10448636. Public record. Not legal advice.