Hooper v. Kroll

Filing 8

MEMORANDUM ORDER overruling objections and adopting the magistrate judge's 3 Report and Recommendation. A certificate of appealability shall not issue in this matter. Signed by Judge Ron Clark on 8/10/2011. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
GLENN WAYNE HOOPER

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 1:10cv516

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Glenn Wayne Hooper, an inmate confined within 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. Petitioner alleges he was denied due process
of law in connection with a prison disciplinary proceeding.
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 denied.
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. As petitioner is not eligible for
release on mandatory supervision, he was not entitled to due process of law in connection with
the disciplinary proceeding. Madison v. Parker, 104 F.3d 765, 768-69 (5th Cir. 1997).
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 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 the issue of whether his claims are
meritorious is 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 10 day of August, 2011.

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Ron Clark, United States District Judge