Findings, Conclusions and Recommendation

of the United States Magistrate Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN THOMAS BAGLEY, 652853, )

Petitioner, )

v. ) No. 3:04-CV-2758-B

)

DOUGLAS DRETKE, Director, TDCJ-CID, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. §636(b), implemented by an Order of the Court, this

case has been referred to the United States Magistrate Judge. The findings, conclusions and

recommendation of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS:

I. Factual background:

Petitioner filed this petition seeking a certificate of appealability (COA). The Court sent

Petitioner a Magistrate Judge’s Questionnaire to determine the cause number for which

Petitioner seeks a COA. Petitioner responded by stating he is “in a quandry (sic).” He states the

District Court denied his § 2254 habeas corpus petition and his motion for COA in cause number

3:03-CV-1731-D. The Fifth Circuit Court of Appeals likewise denied a certificate of

appealability. Petitioner states that if he informs that Court that he is seeking a certificate of

appealability for this cause number, the Court will inform Petitioner that the Fifth Circuit has

already denied the COA.

Petitioner further states that if he informs the Court that he is seeking a COA for this

case, cause number 3:04-CV-2758-B, the Court will deny the request because it has not entered

 

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judgment on a habeas petition in this case. Petitioner therefore requests that the Court decide

which cause number the COA should be filed under.

Discussion:

Petitioner has not filed a habeas corpus petition in this case. His request for a certificate

of appealability in cause number 3:04-2758-B should therefore be denied.

Petitioner’s petition for certificate of appealability in cause number 3:03-CV-1731-D was

denied by the Fifth Circuit on October 21, 2004. The Court is without jurisdiction to reverse the

Fifth Circuit’s order. Petitioner’s motion for COA in cause number 3:03-CV-1761-D should be

denied.

RECOMMENDATION:

For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the

petition for certificate of appealability be DENIED. 

Signed June 1, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions and

recommendation on Petitioner. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must serve and

file written objections within ten days after being served with a copy. A party filing objections

must specifically identify those findings, conclusions or recommendation to which objections are

being made. The District Court need not consider frivolous, conclusory or general objections. A

party's failure to file such written objections to these proposed findings, conclusions and

recommendation shall bar that party from a de novo determination by the District Court. See

Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 472 (1985). Additionally, any failure to file

written objections to the proposed findings, conclusions and recommendation within ten days

after being served with a copy shall bar the aggrieved party from appealing the factual findings

and legal conclusions of the Magistrate Judge that are accepted by the District Court, except

upon grounds of plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417

(5th Cir. 1996) (en banc).

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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