Evans v. Director - Texas Department of Criminal Justice, Correctional Institutions Division
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that a certificate of appealability shall not issue in this matter. Signed by Judge Marcia A. Crone on 10/30/12. (mrp, )
UNITED STATES DISTRICT COURT
CHARLIE EVANS, III,
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:12-CV-343
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Charlie Evans, III, 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
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. 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. As a prior petition challenging the same conviction was dismissed as barred
by the applicable statute of limitations, the magistrate judge correctly concluded that the current
petition is successive.
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 dismissing 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
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 30th day of October, 2012.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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