Milner v. Davis-Director TDCJ-CID ( 2019 )

IN THE UNITED STATES DISTRICT C URTORTHERN DISTRICT OF rex FOR THE NORTHERN DISTRICT OF TEXAS FY LED As AMARILLO DIVISION OCT ~ 4 2qig KENNETH GLENN MILNER, ee § By ICT COURT Petitioner, § De § 7Cputy V. § CIVIL ACTION NO. 2:19-CV-042-Z-BR ~ § LORIE DAVIS, Director, § Texas Department of Criminal Justice, § Correctional Institutions Division, § § Respondent. § ORDER ADOPTING MAGISTRATE JUDGE’S FINDINGS AND CONCLUSIONS AND DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS On July 23, 2019, the United States Magistrate Judge entered findings and conclusions on the Petition for a Writ of Habeas Corpus. The Magistrate Judge RECOMMENDS that the petition be DISMISSED. No objections to the findings, conclusions, and recommendation have been filed. After making an independent review of the pleadings, files, and records in this case, and the findings, conclusions, and recommendation of the magistrate judge, the Court concludes that the findings and conclusions are correct. It is therefore ORDERED that the findings, conclusions, and recommendation of the Magistrate Judge are ADOPTED, and the Petition for a Writ of Habeas Corpus is DISMISSED without prejudice for lack of subject-matter jurisdiction until Petitioner can show he has obtained authorization from the Fifth Circuit to file a successive petition. Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, and Title 28, United States Code section 2253(c), the Court denies a certificate of appealability. The Court ADOPTS and incorporates by reference the Magistrate Judge’s findings, conclusions, and recommendation filed in this case in support of its finding that the 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. See Fed. R. App. P. 24(a)(3). () Petitioner must pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis on appeal. siGNED Cfo ¥ 2019. UNJIED STATES DISTRICT JUDGE