Gassaway v. Director, TDCJ-CID

1
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KELVIN LEE GASSAWAY, 	§
TDCJ No. 1461005, 	§
§
Petitioner, 	§
§
V. 	§ 	No. 3:19-cv-2065-N
§
DIRECTOR, TDCJ-CID, 	§
§
Respondent. 	§
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE
JUDGE AND DENYING A CERTIFICATE OF APPEALABILITY
The 	United 	States 	Magistrate 	Judge 	made 	findings, 	conclusions, 	and 	a
recommendation in this case. An objection was filed by Petitioner. The District Court
reviewed 	de 	novo 	those 	portions 	of 	the 	proposed 	findings, 	conclusions, 	and
recommendation to which objection was made, and reviewed the remaining proposed
findings, conclusions, and recommendation for plain error. Finding no error, the
Court ACCEPTS the Findings, Conclusions, and Recommendation of the United
States Magistrate Judge.
Therefore, the Court DENIES Petitioner Kelvin Lee Gassaway’s second motion
under Federal Rule of Civil Procedure 60(b) [Dkt. No. 45] without prejudice to his
right to seek authorization from the United States Court of Appeals for the Fifth
Circuit to file a successive habeas application.
Considering the record in this case and pursuant to Federal Rule of Appellate
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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
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).1
In the event Petitioner files a notice of appeal, Petitioner must pay the $505.00
filing fee or file a motion for leave proceed in forma pauperis on appeal.
Further, because Petitioner’s motion for relief from judgment invoking Federal
Rule of Civil Procedure 60(b)(4) is in substance a successive habeas application, the
1 	Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended effective on
December 1, 2009, reads as follows:
(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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Clerk of Court is DIRECTED to open for statistical purposes a new Section 2254 case
(nature of suit 530 directly assigned, per Special Order 3-250, to the same district
judge and magistrate judge assigned to this case) and to close the same on the basis
of this order.
SO ORDERED this 20th day of February, 2026.
_____________________________________
DAVID C. GODBEY
UNITED STATES DISTRICT JUDGE
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