United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
the Court is a Petitioner/Appellant Request for an
Certificate of Appealability, received on November 13,
2019 (doc. 57). Based on the relevant filings and applicable
law, the petitioner's motion should be
Jones (Petitioner) filed a federal habeas petition under 28
U.S.C. § 2254, received on April 13, 2017, and an
amended petition that was received on October 23, 2017.
(See docs. 3, 30.) On December 13, 2018, it was
recommended that the habeas petition be denied as barred by
the statute of limitations. (See doc. 38.) The
recommendation was accepted, the petition was denied, and
judgment was entered on January 3, 2019. (See docs.
objections to the recommended dismissal were received on
January 8, 2019, after judgment had been entered.
(See doc. 41.) His notice of appeal was received on
January 16, 2019. (See doc. 42.) On January 23,
2019, it was recommended that the objection be construed as a
motion to alter or amend judgment under Fed.R.Civ.P. 59(e)
and denied. (See doc. 43.) Petitioner's second
notice of appeal was received on that same day. (See
doc. 44.) On February 12, 2019, the recommendation that the
Rule 59(e) motion be denied was accepted, and a certificate
of appealability was denied. (See doc. 49.)
then filed a motion for relief from the judgment under Rule
60(b), which was received on September 10, 2019.
(See doc. 50.) On October 3, 2019, it was
recommended that the motion be denied, Petitioner's
objections were received on October 22, 2019, and the
recommendation was accepted on October 25, 2019.
(See docs. 51-53.) Petitioner then filed objections
and another notice of appeal. (See docs. 52, 55.) He
now seeks a certificate of appealability. (See doc.
CERTIFICATE OF APPEALABILITY
a § 2254 petitioner can appeal the denial of his
petition, he must obtain a certificate of appealability.
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
Appellate review of the denial of a habeas petition is
limited to the issues on which a certificate of appealability
is granted. See Crutcher v. Cockrell, 301 F.3d 656,
658 n.10 (5th Cir. 2002).
demonstrate entitlement to a certificate of appealability, a
petitioner must 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).
Petitioner has failed to make the requisite showing. His
§ 2254 petition was denied as barred by the statute of
limitations, so this case was resolved procedurally. The law
governing the statute of limitations for a § 2254
petition is well established. Therefore, reasonable jurists
would not debate whether this Court was correct in its
motion for a certificate of appealability should be
FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
of these findings, conclusions and recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of these findings, conclusions
and recommendation must file specific written objections
within 14 days after being served with a copy. See
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). In order to
be specific, an objection must identify the specific finding
or recommendation to which objection is made state the basis
for the objection and specify the place in the magistrate
judge's findings conclusion and recommendation where the
disputed determination is found An objection that merely
incorporates by reference or refers to the briefing before
the magistrate judge is not specific Failure to file specific
written objections will bar the aggrieved party from
appealing the factual ...