Livingston v. Director of TDCJ-CID
Filing
16
ORDER adopting 14 Report and Recommendation and granting 12 Motion to Dismiss. Signed by Judge Ron Clark on 3/21/13. (tkd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
RAY EDWARD LIVINGSTON
§
VS.
§
DIRECTOR, TDCJ-CID
§
CIVIL ACTION NO. 1:10cv243
ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Ray Edward Livingston, 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
Keith F. Giblin, 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 recommending that a motion to dismiss filed
by the respondent be granted and that this petition also be denied on the merits.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. 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 as the opinion of the court. The
respondent’s motion to dismiss is GRANTED. 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 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. 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: (a) the issue of whether his petition is
barred by the applicable statute of limitations is subject to debate among jurists of reason or (b)
the issues raised by his grounds for review 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 worthy of encouragement to proceed further. As a
result, a certificate of appealability shall not issue in this matter.
So ORDERED and SIGNED this 21 day of March, 2013.
___________________________________
Ron Clark, United States District Judge
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