Marks v. Quarterman
MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this petition be denied. Signed by Judge Thad Heartfield on 7/16/12. (mrp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
ALLADIN RAY MARKS
CIVIL ACTION NO. 1:09-CV-304
MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Alladin Ray Marks, an inmate confined at Ellis 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.
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 this petition be denied.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, and pleadings. No
objections to the Report and Recommendation of United States Magistrate Judge were filed by
the parties. Therefore, the findings of fact and conclusions of law of the Magistrate Judge are
correct and the report of the Magistrate Judge is adopted.
Furthermore, the court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying post-conviction collateral relief may not
proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2254. 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 not 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).
In this case, petitioner has not shown that any of the issues would be subject to debate
among jurists of reason. The questions presented are not worthy of encouragement to proceed
further. Therefore, the petitioner has failed to make a sufficient showing to merit the issuance of
certificate of appealability.
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
in this case in accordance with the Magistrate Judge’s recommendations.
SIGNED this the 16 day of July, 2012.
United States District Judge
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