King v. Livingston et al

Filing 6

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this petition be denied. Signed by Judge Marcia A. Crone on 4/30/13. (mrp, )

UNITED STATES DISTRICT COURT

VERNON KING, JR.,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:10-CV-409

MEMORANDUM ORDER ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Vernon King, Jr., an inmate confined at the Stiles 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 Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, 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 concerning the petition. The magistrate judge recommends the petition be denied.
The court has received the Report and Recommendation of United States Magistrate Judge,
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 denying
the petition.

In addition, the court is of the opinion petitioner is not entitled to a certificate of
appealability regarding this matter. An appeal from a final judgment denying a petitioner federal
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 that he has been denied 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 is not required to establish he would prevail on the merits. Rather, he
must demonstrate that the issues he raises 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
a certificate of appealability should be granted 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 the issue of whether his petition is meritorious
is subject to debate among jurists of reason. The factual and legal questions raised have been
consistently resolved adversely to petitioner and the questions presented are not worthy of

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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 Sherman, Texas, this 30th day of April, 2013.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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