Sanders v. Director - Texas Department of Criminal Justice, Correctional Institutions Division

Filing 7

MEMORANDUM ORDER overruling petitioner's objections and adopting the magistrate judge's 4 Report and Recommendation. A certificate of appealability shall not be issued. Signed by Judge Thad Heartfield on 6/2/2010. (bjc, )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION TOMMY SANDERS VS. DIRECTOR, TDCJ-CID § § § CIVIL ACTION NO. 1:07cv557

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION Petitioner Tommy Sanders, an inmate confined at the Michael Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brought 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 Magistrate Judge recommends the petition be dismissed as barred by the applicable statute of limitations. The court has received and considered the Report and Recommendation of United States Magistrate Judge filed pursuant to such order, along with the record, pleadings and all available evidence. Petitioner filed objections to the magistrate judge's Report and Recommendation. The court conducted a de novo review of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes petitioner's objections are without merit and should be overruled. Accordingly, the petition should be dismissed.1
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Petitioner asserts that the case should be transferred to the Southern D i s t r i c t , Houston Division because he attacks a conviction which occurred in H o u s t o n . In this petition, however, petitioner clearly asserted that he attacked

Furthermore, petitioner is not entitled to the issuance of a certificate of appealability. An appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard for granting a certificate of appealability, like that for granting a certificate of probable cause to appeal under prior law, requires the movant to make a substantial showing of the denial of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that substantial showing, the movant need not establish that he should 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 is resolved in favor of the movant, and the severity of the penalty may be considered in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S. 849 (2000). Here, petitioner has not shown that any of the issues raised by his claims are subject to debate among jurists of reason. The factual and legal questions advanced by petitioner are not novel and have been consistently resolved adversely to his position. In addition, the questions presented are not worthy of encouragement to proceed further. Therefore, petitioner has failed to make a sufficient

his conviction for Aggravated Sexual Assault, cause number 64891, entered in the c r i m i n a l district court for Jefferson County, Texas. See Original Petition at *2. T h i s court finds it not in the interest of justice to transfer the claims p e r t a i n i n g to the Houston conviction to the Southern District court as they are a l s o barred by limitations.

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showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of appealability shall not be issued. ORDER Accordingly, petitioner's objections 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. A final judgment will be entered in this case in accordance with the magistrate judge's recommendations.
SIGNED this the 2 day of June, 2010.

____________________________ Thad Heartfield United States District Judge

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