Mitchell v. Quarterman
MEMORANDUM ORDER overruling petitioner's objections and adopting the 66 Report and Recommendation. Signed by Judge Thad Heartfield on 2/22/2017. (bjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
JOHN DOUGLAS MITCHELL
CIVIL ACTION NO. 1:08cv37
MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner John Douglas Mitchell, an inmate confined at the Eastham 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 denied and dismissed.
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 should be overruled.
Petitioner’s claims brought in his amended petition were dismissed by the Texas Court of
Criminal Appeals for abuse of the writ. Petitioner has failed to show cause and prejudice or a
miscarriage of justice regarding the claims. Accordingly, such claims are unexhausted and
procedurally barred. Further, the claims are barred by limitations.
The court has thoroughly reviewed all claims properly before the court and has determined
petitioner’s claims are without merit.1 Additionally, petitioner has failed to show either that the state
Even assuming, arguendo, petitioner’s claims in his amended petition are properly before the court, the claims are
court adjudication was contrary to, or involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the United States or that the state court
adjudication resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding. Accordingly, petitioner’s petition for
writ of habeas corpus should be denied.
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
showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of
appealability shall not be issued.
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
SIGNED this the 22 day of February, 2017.
United States District Judge
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