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

Filing 5

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be denied. The court is of the opinion petitioner is not entitled to a certificate of appealability. Signed by Judge Marcia A. Crone on 7/26/11. (mrp, )

UNITED STATES DISTRICT COURT

DANNY AGUILAR,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:11-CV-69

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Danny Aguilar, an inmate confined within the Texas Department of Criminal Justice,
Correctional Institutions Division, proceeding pro se, filed this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner challenges a prison disciplinary conviction.
The court referred this matter to the Honorable Keith F. Giblins, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The magistrate judge has submitted a Report and Recommendation of United States Magistrate
Judge concerning the petition. The magistrate judge recommends the petition be denied.
The court has received the Report and Recommendation of United States Magistrate Judge,
along with the record, pleadings, and all available evidence. Petitioner filed objections to the
Report and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. After careful consideration, the court concludes the objections are without
merit. As the sanctions imposed as a result of the disciplinary conviction did not present an

atypical or significant hardship, petitioner was not entitled to due process of law before receiving
the punishment imposed. Sandin v. Conner, 515 U.S. 472, 483-84 (1995).
ORDER
Accordingly, petitioner’s objections to the Report and Recommendation 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 denying
the petition.
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 28 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 establish
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 or cognizable in a petition for writ of habeas corpus is subject to debate among jurists

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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.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Beaumont, Texas, this 26th day of July, 2011.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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