Sheppard v. Wallace

Filing 19

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be denied and petitioner is not entitled to the issuance of a certificate of appealability. Signed by Judge Marcia A. Crone on 6/25/12. (mrp, )

UNITED STATES DISTRICT COURT

CURTIS LEE SHEPPARD,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:12-CV-8

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Curtis Lee Sheppard, a prisoner confined at the Stiles 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 ordered that this matter be referred to the Honorable Zack Hawthorn, United
States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and
orders of this court. The magistrate judge recommends denying the petition.
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
the objections are without merit.
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; Avila v.
Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). 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 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.
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

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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 25th day of June, 2012.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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