Tingler v Rich
Filing
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MEMORANDUM ORDER overruling petitioner's objections and adopting the magistrate judge's 2 Report and Recommendation. A certificate of appealability shall not be issued. Signed by Judge Marcia A. Crone on 11/19/2011. (bjc)
UNITED STATES DISTRICT COURT
JOSHUA CURTIS TINGLER,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.
EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:10-CV-421
MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Joshua Curtis Tingler, an inmate at the Stiles Unit, proceeding pro se, brought
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 the petition be dismissed.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings and all available evidence. Petitioner filed
objections to the magistrate judge’s Report and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. See FED . R. CIV . P. 72(b). After careful consideration, the court concludes
Petitioner’s objections are without merit.
Furthermore, the petitioner is not entitled to the issuance of a certificate of appealability.
An appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge
issues a certificate of appealability. See 28 U.S.C. § 2253; FED . R. APP. P. 22(b). The standard
for granting a certificate of appealability, like that for granting a certificate of probable cause to
appeal under prior law, 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); see also Barefoot v. Estelle, 463 U.S. 880, 893
(1982). In making that substantial showing, the petitioner need not establish that he should 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 is 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).
Here, the petitioner has not shown that any of the issues raised by his claims are subject
to debate among jurists of reason. The factual and legal questions advanced by the petitioner are
not novel and have been consistently resolved adversely to his position. In addition, 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 a certificate of appealability. Accordingly,
a certificate of appealability shall not be issued.
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 in this case in accordance with the magistrate
judge's recommendation.
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SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 19th day of November, 2011.
________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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