Clark v. Director - Texas Department of Criminal Justice, Correctional Institutions Division

Filing 37

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this petition be dismissed without prejudice. The petitioner has failed to make a sufficient showing to merit the issuance of a certificate of appealability. Therefore, a certificate of appealability shall not be issued. Signed by Judge Marcia A. Crone on 4/6/17. (mrp, )

UNITED STATES DISTRICT COURT
NATHANIEL DYWANE CLARK,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:11-CV-17

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Nathaniel Dywane Clark, an inmate at the Ellis 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 this petition be dismissed without prejudice.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings.

No objections to the Report and

Recommendation of United States Magistrate Judge were filed by the parties.
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. Thus, the petitioner has failed to
make a sufficient showing to merit the issuance of a certificate of appealability. Therefore, a
certificate of appealability shall not be issued.
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
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 Plano, Texas, this 6th day of April, 2017.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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