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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SCOTTIE H. GIBSON, §

§

 Petitioner, §

§

v. §

§

 Civil Action No. 3:22-CV-0992-L-BT

DALE S. HANNA and DAVID 

VERNON,

§

§

§

 Respondents. §

ORDER

On November 15, 2022, United States Magistrate Judge Rebecca Rutherford entered the 

Findings, Conclusions, and Recommendation of the United States Magistrate Judge (the “Report”) 

(Doc. 26), recommending that the court deny with prejudice pro se Petitioner Scottie H. Gibson’s 

(“Petitioner”) motion seeking a certificate of appealability (“COA”) (Doc. 25). The Report

recommends the court deny the motion because Petitioner failed to demonstrate that his dismissed 

claim for habeas relief substantially showed the denial of a constitutional right. Report 2-3 (citing 

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)). In a previous order, the court dismissed his 

original habeas claim without prejudice for failure to exhaust state remedies. Doc. 22. 

Petitioner filed an objection to the Report recommending denial of his motion seeking a 

COA, asserting: (1) that the Report gave an incorrect year in the style’s case number; (2) that his 

petition was improperly construed as brought under 28 U.S.C. § 2241, which only applies to 

federal detainees, and because Petitioner is in state custody, Section 2254 is the proper vehicle for 

his claim because he is a state detainee; and (3) that Petitioner has met all exhaustion requirements 

under Section 2254 because his appeal started at the 249th Judicial District Court, then the 10th 

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Court of Appeals, and then the Texas Court of Criminal Appeals, and “[a]ll attempts were denied 

and moot.” Doc. 27 at 2-43.

As to Petitioner’s objection that the Report’s mistaken digit in the case style renders the 

Report deficient by law, Petitioner correctly notes the Report’s error but does not present any legal 

precedent for his conclusory claim that such an error renders the entire Report void. Further, 

Petitioner does not show any prejudice. The Report was correctly docketed in his case, and he 

received notice of the Report with sufficient time to file objections, which he did. Because 

Petitioner does not point to any support for his objection to the Report, and the court can find none, 

the court overrules this objection. 

Having reviewed the Motion, objections, record, Report, and applicable law, and having 

conducted a de novo review of the portions of the Report to which Objections were made, the court 

determines that the findings and conclusions of the Magistrate Judge are correct, and accepts 

them as those of the court. Accordingly, Petitioner’s objection (Doc. 27) is overruled, and his 

Motion seeking a certificate of appealability (Doc. 25) is denied with prejudice. Petitioner

incorrectly asserts that Section 2251 is inapplicable because it only applies to federal detainees; 

rather, Section 2251(d) provides instructions specific to state detainees. See 28 U.S.C. § 2251(d). 

For this reason, any objection Petitioner makes regarding the Report construing his Motion under 

Section 2251 or Section 2254’s state remedies exhaustion requirement is legally incorrect and

therefore, is overruled. 

Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 

22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c), 

the court denies a certificate of appealability.* The court determines that Petitioner has failed to 

* Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows: 

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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, 529 U.S. at 484. In support of this determination, the court 

accepts and incorporates by reference the magistrate judge’s report filed in this case. In the event 

that Petitioner files a notice of appeal, he must pay the $505 appellate filing fee or submit a motion 

to proceed in forma pauperis on appeal.

It is so ordered this 19th day of December, 2022.

_________________________________

Sam A. Lindsay

United States District Judge

(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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