Bailey v. State of Texas

Filing 4

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be dismissed without prejudice for failure to exhaust state court remedies. Signed by Judge Marcia A. Crone on 3/1/10. (mrp, )

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS ROBERT EARL BAILEY, Petitioner, versus STATE OF TEXAS, Respondent. CIVIL ACTION NO. 1:08-CV-860 MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION Robert Earl Bailey, proceeding pro se, filed this petition for writ of habeas corpus. The court referred this matter to the Honorable Earl S. Hines, United States Magistrate Judge, 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 recommending the petition be dismissed without prejudice for failure to exhaust state court remedies. The court has received the Report and Recommendation, along with the record, pleadings, and all available evidence. No objections were filed to the 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 dismissing this petition. In addition, the court is of the opinion petitioner is not entitled to a certificate of appealability. An appeal from a judgment denying 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 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, petitioner has not shown that the issue of whether he adequately exhausted his state court remedies is subject to debate among jurists of reason. The factual and legal questions 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. . SIGNED at Beaumont, Texas, this 7th day of September, 2004. SIGNED at Beaumont, Texas, this 1st day of March, 2010. ________________________________________ MARCIA A. CRONE UNITED STATES DISTRICT JUDGE 2

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