Gaddis v. Director - Texas Department of Criminal Justice, Correctional Institutions Division
MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this petition be dismissed without prejudice as successive. The factual and legal questions presented are not worthy of encouragement to proceed further. As a result, a certificate of appealability shall not issue in this matter. Signed by Judge Marcia A. Crone on 8/25/11. (mrp, )
UNITED STATES DISTRICT COURT
EDDIE LEE GADDIS, JR.,
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:11-CV-329
MEMORANDUM ORDER ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Eddie Lee Gaddis, Jr., an inmate confined at the Eastham Unit of 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.
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 has submitted a Report and Recommendation of United States Magistrate
Judge recommending the petition be dismissed without prejudice as successive.
The court has received the Report and Recommendation of United States Magistrate Judge,
along with the record, pleadings, and all available evidence. No objections were filed to the Report
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 dismissing
the petition 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 28 U.S.C. § 2253. The standard for a certificate
of appealability requires the petitioner to make a substantial showing that he has been denied 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 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 petition is successive
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.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 25th day of August, 2011.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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