Roberts v. Thaler

Filing 5

MEMORANDUM ORDER overruling objections and adopting the magistrate judge's 2 Report and Recommendation. Signed by Judge Ron Clark on 8/10/2011. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
JOHN ROBERTS

§

VS.

§

DIRECTOR, TDCJ-CID

§

CIVIL ACTION NO. 1:10cv176

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner John Roberts, an inmate confined in the Allred Unit of the Texas Department
of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed the above-styled
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, for consideration pursuant to 28 U.S.C. § 636 and applicable orders of this 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 as successive.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report
and Recommendation.
The court has conducted a de novo review of the objections. After careful consideration,
the court is of the opinion the objections are without merit. The Magistrate Judge correctly
concluded this is a successive petition filed without authorization from the United States Court of
Appeals for the Fifth Circuit.1

1

In his objections, petitioner asked that this matter be held in abeyance so that he could seek permission
from the Fifth Circuit to file a successive petition. In other circumstances, the court would be inclined to either grant
his request or transfer this matter directly to the Fifth Circuit. However, after the current petition was filed,
petitioner filed a motion with the Fifth Circuit seeking leave to file a successive motion. The Fifth Circuit denied the
motion. In re Roberts, No. 10-40356 (5th Cir. June 8, 2010).

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 as the opinion of the court. A final judgment shall be entered in accordance with the
recommendation of the Magistrate Judge.
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 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
demonstrate that he would prevail on the merits. Rather, he must demonstrate that the issues
raised in the petition 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 court dismissed the petition 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 granting 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).

So ORDERED and SIGNED this 10 day of August, 2011.

___________________________________
Ron Clark, United States District Judge