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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SCOTTIE H. GIBSON,

#201901879

§

§

 Petitioner, §

§ No. 3:20-cv-00992-L (BT)

v. §

§

DALE S. HANNA, et al., 

 Respondents. 

§

§

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Petitioner Scottie H. Gibson has filed a motion seeking a certificate of 

appealability (COA). (ECF No. 25.) For the following reasons, the District 

Court should deny Gibson’s motion. 

I.

Gibson filed a pro se document the United States magistrate judge 

construed as a petition for writ of habeas corpus under 28 U.S.C. § 2254. On 

May 27, 2022, the magistrate judge issued findings and conclusions, 

recommending the Court construe this filing as a motion seeking a writ of 

habeas corpus under 28 U.S.C. § 2241 and dismiss it without prejudice for 

failure to exhaust state court remedies. Gibson filed objections (ECF No. 14), 

but they were overruled. And on September 29, 2022, the District Court 

accepted the magistrate judge’s recommendation and denied Gibson’s 

petition without prejudice. Ord. (ECF No. 22); J. (ECF No. 23). Thereafter, 

Gibson filed an appeal in the Fifth Circuit Court of Appeals. (ECF No. 24.) 

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On October 24, 2022, Gibson filed the instant motion seeking a COA. 

(ECF No. 25.) In his motion, Gibson requests a COA be sent to the Clerk of 

the Court for the Fifth Circuit. He also requests two copies of the COA for his 

personal records. 

II.

Gibson is a state pretrial detainee, so a COA is required to appeal a 

district court’s decision denying him relief under § 2241. Gibson v. Orleans 

Parish Sheriff, 2014 WL 1066987, at *1 (5th Cir. Mar. 20, 2014) (citing 28 

U.S.C. § 2253(c)(1)(A); Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 

1998)). The standard for granting a COA requires the petitioner to make a 

substantial showing of the denial of a constitutional right. Slack v. 

McDaniel, 529 U.S. 473, 483-84 (2000); see also Elizalde v. Dretke, 362 

F.3d 323, 328 (5th Cir. 2004) (citing 28 U.S.C. § 2253(c)(2)). In making the 

requisite showing, the petitioner does not have to establish that he would 

prevail on the merits. See Slack, 529 U.S. at 483-84. Rather, the petitioner 

must demonstrate only that the issues are subject to debate among jurists of 

reason, a court could resolve the issues in a different manner, or the 

questions presented are worthy of encouragement to proceed further. See id. 

at 484. Any doubt regarding whether to grant a COA should be resolved in 

favor of the petitioner. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir. 

2000). If the district court denies a COA, the parties may not appeal the 

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denial, but they may seek a COA from the court of appeals. Fed. R. App. Proc. 

22(a). 

The magistrate judge noted that a pretrial petition, like Gibson’s, was 

properly filed under § 2241, and found his case should be construed as one 

seeking a writ of habeas corpus filed under § 2241. FCR 2-3 (ECF No. 10). 

Gibson raised four claims in his habeas petition. Id. at 2. The magistrate 

judge found that Gibson failed to show that he had exhausted his state court 

remedies prior to filing his habeas petition in this Court. Id. at 3. Likewise, 

the Court noted that an independent review of the Texas Court of Criminal 

Appeals’s (CCA) website revealed that Gibson failed to present his claims for 

review prior to filing his habeas petition. On September 29, 2022, the 

District Court accepted the recommendation and construed this action as 

one seeking a writ of habeas corpus filed under § 2241 and dismissed it 

without prejudice. Considering the magistrate judge’s recommendation and 

the District Court’s acceptance of that recommendation to dismiss the 

petition without prejudice for failure to exhaust state court remedies, Gibson 

has failed to demonstrate his claims are worthy of further encouragement. 

See Slack, 529 U.S. at 484. Likewise, he has not shown that any of his claims 

were properly exhausted, otherwise subject to debate by jurists of reason, or 

that another court may resolve the claims differently. See id. Therefore, 

Gibson has failed to demonstrate that he is entitled to a COA, and the District 

Court should deny his motion. 

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III.

For the foregoing reasons, the Court should DENY Gibson’s motion. 

SO RECOMMENDED. 

Signed November 2, 2022. 

____________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report 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 report 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 findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996)

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