Summers v. Livingston

Filing 14

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this petition be dismissed as barred by the applicable statute of limitations. A certificate of appealability shall not issue in this matter. Signed by Judge Marcia A. Crone on 5/24/12. (mrp, )

UNITED STATES DISTRICT COURT

ANTHONY L. SUMMERS,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:11-CV-396

MEMORANDUM ORDER ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Anthony L. Summers, 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. 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 as barred by the applicable statute of limitations.
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
and Recommendation.
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 dismissing
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 differently, or that the
questions presented are worthy of encouragement to proceed further. See Slack, 529 U.S. at 48384. 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 barred by
the applicable statute of limitations 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

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certificate of appealability shall not issue in this matter.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 24th day of May, 2012.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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