Moore v. Livingston
MEMORANDUM ORDER adopting the magistrate judge's 5 Report and Recommendation. A certificate of appealability will not be issued. Signed by Judge Marcia A. Crone on 11/19/2011. (bjc)
UNITED STATES DISTRICT COURT
JOSEPH DANIEL MOORE,
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:11-CV-428
MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Joseph Daniel Moore, a prisoner confined at the Darrington Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brought this
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The court ordered that this matter be referred 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 dismissing the petition without prejudice
pursuant to Federal Rule of Civil Procedure 41(a)(1).
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, pleadings and all available
evidence. No objections to the Report and Recommendation of United States Magistrate Judge
were filed by the parties.
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. If the petition was denied on
procedural grounds, the petitioner must show that jurists of reason would find it debatable:
(1) whether the petition raises a valid claim of the denial of a constitutional right, and (2) whether
the district court was correct in its procedural ruling. Id. at 484; Elizalde, 362 F.3d at 328. 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, or that the procedural ruling was incorrect. Therefore, the
petitioner has failed to make a sufficient showing to merit the issuance of a certificate of
appealability. Accordingly, a certificate of appealability will not be issued.
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.
A certificate of
appealability will not be issued.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 19th day of November, 2011.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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