Holmes v. Arnold

Filing 63

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be denied as without merit and 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 7/29/14. (mrp, )

UNITED STATES DISTRICT COURT

MARVIN GABRIEL HOLMES,
Petitioner,
versus
DIRECTOR, TDCJ-ID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:12-CV-103

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Marvin Gabriel Holmes, 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. 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 the court.
The magistrate judge has submitted a Report and Recommendation of United States
Magistrate Judge concerning this matter. The magistrate judge recommends the petition be denied
as without merit and 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. Petitioner filed objections to the
Report and Recommendation.
The court has conducted a de novo review of petitioner’s objections in relation to the
pleadings and the applicable law. After careful consideration, the court concludes the objections

are without merit. The magistrate judge correctly concluded petitioner’s grounds for review are
without merit and are barred by the applicable statute of limitations.
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
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 final judgment denying 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 issues raised are subject to debate among
jurists of reason. The factual and legal questions raised by petitioner have been consistently

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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 29th day of July, 2014.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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