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

Filing 31

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be denied. 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. A certificate of appealability shall not issue in this matter. Signed by Judge Marcia A. Crone on 10/25/10. (mrp, )

-ESH Koumjian v. Director - Texas Department of Criminal Justice, Correct...l Institutions Division

Doc. 31

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

PAUL JAMES KOUMJIAN, Petitioner, versus DIRECTOR, TDCJ-CID, Respondent.

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CIVIL ACTION NO. 1:08-CV-373

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION Paul James Koumjian, an inmate confined at the Hughes Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a prison disciplinary conviction. The court referred this matter to the Honorable Earl S. Hines, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The magistrate judge has submitted a Report and Recommendation of United States Magistrate Judge concerning the petition. The magistrate judge recommends the petition be denied. 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. The magistrate judge correctly concluded there was sufficient evidence to support the

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disciplinary conviction, and that petitioner suffered no prejudice as the result of not being allowed to introduce certain evidence at the disciplinary hearing. In addition, the court agrees that the prison regulation petitioner was convicted of violating was neither overbroad nor unconstitutionally vague. 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. A final judgment will be entered denying 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, 483-84 (2000); Elizalde v. Dretke, 362 F.3d 323, 328 (5th 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 determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S. 849 (2000).

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In this case, the petitioner has not shown that the issue of whether his claims are meritorious is 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. SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Beaumont, Texas, this 25th day of October, 2010.

________________________________________ MARCIA A. CRONE UNITED STATES DISTRICT JUDGE

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