Bogany v. Quarterman
Filing
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MEMORANDUM ORDER overruling objections and adopting the magistrate judge's 2 Report and Recommendation. A certificate of appealability shall not issue in this matter. Signed by Judge Marcia A. Crone on 7/25/2011. (bjc)
UNITED STATES DISTRICT COURT
ROBERT AMOS BOGANY,
Petitioner,
versus
DIRECTOR, TDCJ-ID,
Respondent.
EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:09-CV-903
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Robert Amos Bogany, 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 the court.
The magistrate judge has submitted a Report and Recommendation of United States
Magistrate Judge concerning this matter. The magistrate judge recommends the petition be
dismissed without prejudice for lack of subject-matter jurisdiction.
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. As petitioner is no longer in custody as a result of the conviction challenged in the petition,
the court lacks subject-matter jurisdiction over the petition.
ORDER
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 dismissing the petition.
In addition, the court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a final 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
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. If the petition was denied on procedural grounds, the petitioner must show that jurists
of reason would find it debatable: (1) whether the petition raises a valid claim of the denial of a
constitutional right; and (2) whether the district court was correct in its procedural ruling. Slack,
529 U.S. at 484; Elizalde, 362 F.3d at 328. 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, the petitioner has not shown that the procedural ruling was incorrect , or that
any of the issues raised by his claims are subject to debate among jurists of reason. The factual
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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 July, 2011.
________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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