Evans v. Director, TDCJ-CID, 1:08-cv-00006

1:08-cv-00006 | E.D. Tex. | May 17, 2010

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS CHARLES EVANS, III, §

§ Petitioner, § § versus § CIVIL ACTION NO. 1:08-CV-6 § DIRECTOR, TDCJ-CID, § § Respondent. § MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Charles Evans, III, proceeding pro se , filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court referred this matter to the Honorable Keith F. Giblin, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.

The respondent filed a motion asking that this case be dismissed as barred by the applicable statute of limitations and because petitioner has failed to exhaust his state court remedies. The magistrate judge has submitted a Report and Recommendation of United States Magistrate Judge recommending the motion be granted.

The court has received the Report and Recommendation of United States Magistrate Judge, along with the record, pleadings, and all available evidence. Petitioner filed objections to the Report and Recommendation.

The court has conducted a de novo review of the objections in relation to the pleadings and the applicable law. After careful consideration, the court concludes the objections are without merit.

ORDER

Accordingly, petitioner’s objections to the Report and Recommendation are OVERRULED . The findings of fact and conclusions of law of the magistrate judge are correct and the report of the magistrate judge is ADOPTED . The respondent’s motion to dismiss is GRANTED. A final judgment will be entered dismissing the petition.

In addition, the court is of the opinion petitioner is not entitled to a certificate of appealability. An appeal from a judgment denying federal habeas relief may not proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard for a certificate of appealability requires the petitioner to make a substantial showing of the denial of a federal constitutional right. See Slack v. McDaniel , 529 U.S. 473" date_filed="2000-04-26" court="SCOTUS" case_name="Slack v. McDaniel">529 U.S. 473, 483-84 (2000); Elizalde v. Dretke , 362 th F.3d 323, 328 (5 Cir. 2004). To make a substantial showing, the petitioner need not establish that he would prevail on the merits. Rather, he must demonstrate that the issues are subject to debate among jurists of reason, that a court could resolve the issues in a different manner, or that the questions presented are worthy of encouragement to proceed further. See Slack , 529 U.S. at 483-84. Any doubt regarding whether to grant a certificate of appealability should be resolved in favor of the petitioner, and the severity of the penalty may be considered in making this th determination. See Miller v. Johnson , 200 F.3d 274" date_filed="2000-02-24" court="5th Cir." case_name="Miller v. Johnson">200 F.3d 274, 280-81 (5 Cir.), cert. denied , 531 U.S. 849" date_filed="2000-10-02" court="SCOTUS" case_name="Norris v. United States">531 U.S. 849 (2000).

In this case, the petitioner has not shown that the issues of whether his claims are barred by the applicable statute of limitations and whether he has exhausted his state court remedies are subject to debate among jurists of reason. The factual and legal questions raised by petitioner have been consistently resolved adversely to his position and the questions presented are not worthy of encouragement to proceed further. As a result, a certificate of appealability shall not issue in this matter.