Evans v. Bell
MEMORANDUM ORDER overruling objections and adopting 13 Report and Recommendation. Signed by Judge Ron Clark on 4/26/12. (tkd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
ANDRE COLAVITO EVANS
CIVIL ACTION NO. 1:10cv676
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Andre Colavito Evans, 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 moot.
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
The court has conducted a de novo review of the objections. Petitioner asserts that his
petition should not be dismissed as untimely, but does not contest the Magistrate Judge’s
conclusion that his petition is moot. As the objections are not responsive to the Report and
Recommendation, they are without merit. The court notes that as petitioner states he disagrees
with the “Report and Recommendation of timeliness of filing,” he appears to actually be
responding to the answer filed by the respondent asserting that the petition should be dismissed
as barred by the applicable statute of limitations. This conclusion is supported by the fact that
the copy of the Report and Recommendation sent to petitioner was returned to the court with a
notation stating petitioner was no longer at the address provided to the court, indicating petitioner
never received the Report and Recommendation. As petitioner has not provided the court with a
current address, this petition will alternatively be dismissed for want of prosecution pursuant to
Federal Rule of Civil Procedure 41(b). See Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988)
(per curiam) (pro se litigant’s case dismissed for failure to prosecute when he failed to keep the
court apprised of his current address).
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).
In this case, the petitioner has not shown that any of the issues raised by his claims are
subject to debate among jurists of reason, or that a procedural ruling was incorrect. 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 26 day of April, 2012.
Ron Clark, United States District Judge
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