Summers v. State of Texas Department of Criminal Justice Institutional Division

Filing 4

MEMORANDUM ORDER Adopting the Magistrate Judge's Report and Recommendation. The petitioner has not shown that any of the issues raised in the petition are subject to debate among jurists of reason. The factual and legal questions raised by pet itioner have been consistently resolved adversely to his position and the questions presented are not worth of encouragement to proceed further. As a result, a certificate of appealability shall not issue. Signed by Judge Marcia A. Crone on 10/20/08. (mrp, )

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

ANTHONY LEON SUMMERS, Petitioner, versus DIRECTOR, TDCJ-CID, Respondent.

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CIVIL ACTION NO. 1:08-CV-426

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION Petitioner Anthony Leon Summers, 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 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. No objections were filed to the magistrate judge's Report and Recommendation. ORDER Accordingly, 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 certificate of appealability is granted. 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, a petitioner need not establish 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 48384. 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). Here, the petitioner has not shown that any of the issues raised in the petition 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 worth of encourag.ement to proceed further. As a result, a certificate of appealability shall not issue. SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Beaumont, Texas, this 20th day of October, 2008.

________________________________________ MARCIA A. CRONE UNITED STATES DISTRICT JUDGE

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