Harris v. Alford

Filing 11

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this petition be dismissed.A certificate of appealability shall not be issued. Signed by Judge Marcia A. Crone on 12/6/12. (mrp, )

UNITED STATES DISTRICT COURT
DUANE BERNARD HARRIS,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:11-CV-24

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Duane Bernard Harris, an inmate confined 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 a United States Magistrate Judge at Beaumont, Texas for
consideration pursuant to applicable laws and orders of this court.

The magistrate judge

recommends that 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.
A petition for writ of habeas corpus permits a petitioner to seek immediate or earlier release
from custody, whereas a compliant pursuant to 42 U.S.C. § 1983 provides the proper vehicle to
challenge unconstitutional conditions of confinement and prison procedures. See Carson v. Johnson,
112 F.3d 818, 820 (5th Cir. 1997). As explained in the Report, petitioner's claims do not contest
the fact or duration of his confinement because he is not eligible for release on mandatory
supervision. Accordingly, petitioner’s claims are not cognizable in a petition for writ of habeas
corpus. Petitioner’s claims do not serve as a basis for habeas corpus relief, but rather form the

basis for a claim under 42 U.S.C. § 1983. See Spencer v. Bragg, 310 Fed. Appx. 678, 2009 WL
405864, at *1 (5th Cir. Feb. 18, 2009); Schipke v. Van Buren, 239 Fed. Appx. 85, 2007 WL
2491065, at *1 (5th Cir. Aug. 30, 2007); Cook v. Hanberry, 596 F.2d 658, 660 n.1 (5th Cir.
1979). Thus, petitioner must pursue his claims by filing an appropriate civil rights action.
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.

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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

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judge's recommendation.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 6th day of December, 2012.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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