Harris v. Brazoria County Texas 149th District Court

Filing 10

ORDER: (1) Magistrate Judge's Recommended Disposition 6 is ACCEPTED and ADOPTED as the Court's decision; (2) Petitioner's Motion Under 28 U.S.C. § 2254 1 is DENIED for the reasons set forth in the Recommended Disposition. Signed by Judge Joseph M. Hood on 10/26/2018.(STC)cc: Petitioner

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
SHANNON KEITH HARRIS,

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Plaintiff,
V.
BRAZORIA COUNTY TEXAS 149TH
DISTRICT COURT,
Defendant.

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Civil No. 5:18-423-JMH

ORDER

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Petitioner Shannon Keith Harris has filed a pro se motion
under 28 U.S.C. § 2254 [DE 1], which was referred to the Magistrate
Judge for an initial review of the filing.

The Magistrate Judge

has now filed a Recommended Disposition [DE 6].

Defendant has not

raised objections to the recommendation that his petition be
dismissed because he is not in custody pursuant to a state judgment
as required by § 2254(a) nor is he subject to any unexpired state
sentences at this time, even though he is held in federal custody.
Pursuant to Federal Rule of Civil Procedure 72, a party may
object to and seek review of a magistrate judge's report and
recommendation.

See Fed. R. Civ. P. 72(b)(2).

If objections are

made, “[t]he district judge must determine de novo any part of the
magistrate judge's disposition that has been properly objected
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to.” Fed. R. Civ. P. 72(b)(3). Objections must be stated with
specificity.

Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation

omitted). When the petitioner fails to file any objections to the
Recommended Disposition, as in the case sub judice, A[i]t does not
appear that Congress intended to require district court review of
a magistrate=s factual or legal conclusions, under a de novo or any
other standard.@ Thomas v. Arn, 474 U.S. 140, 150 (1985). Further,
the Court concludes that the recommended disposition is well
supported by the law cited by the magistrate judge and the facts
averred in the Petition.

Consequently, and in the absence of any

objections from Petitioner, this Court adopts the well-articulated
and detailed reasoning set forth in the Recommended Disposition as
its own.
Finally, the Court observes that the petition presents no
question

subject

appeability.

to

the

requirement

of

a

certificate

of

See Rule 11 of the Rules Governing Section 2254.

Nor is the Court persuaded that one should issue to the extent
that the Court has taken action with respect to claims initially
presented by Defendant under 28 U.S.C. § 2254.

AA certificate of

appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.@
U.S.C.

'

2253(c)(2).

In

order

for

a

certificate

to

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issue,

Defendant must be able to show that reasonable jurists could find
in

his

favor,

and

the

Aquestion
2

is

the

debatability

of

the

underlying federal constitutional claim, not the resolution of
that debate.@

Miller-El v. Cockrell, 537 U.S. 322, 342 (2003).

Having carefully considered the matter, this Court concludes that
there is no call for a certificate to issue in this matter.
Accordingly, IT IS ORDERED:
(1)

that the Magistrate Judge=s Recommended Disposition [DE

6] is ACCEPTED and ADOPTED as the Court’s decision;
(2)

that Petitioner’s Motion Under 28 U.S.C. § 2254 [DE 1]

is DENIED for the reasons set forth in the Recommended Disposition.
This the 26th day of October, 2018.

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