Fontenot v. Director - Texas Department of Criminal Justice, Correctional Institutions Division
Filing
22
ORDER adopting 20 Report and Recommendation. Signed by Judge Ron Clark on 12/5/14. (tkd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
DARON JOSEPH FONTENOT
§
VS.
§
DIRECTOR, TDCJ-CID
§
CIVIL ACTION NO. 1:12cv526
ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Daron Joseph Fontenot, proceeding pro se, filed the above-styled 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, for consideration pursuant to 28
U.S.C. § 636 and applicable orders of this court. The Magistrate Judge has submitted a Report
and Recommendation of United States Magistrate Judge recommending this petition be
dismissed without prejudice for failure to exhaust state court remedies.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. 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 as the opinion of the court. A final
judgment shall be entered in accordance with the recommendation of the Magistrate Judge.
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 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
demonstrate 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 issue of whether he exhausted his state
court remedies is subject to debate among jurists of reason. The relevant factual and legal
questions have been consistently resolved adversely to petitioner 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.
So ordered and signed on
Dec 5, 2014
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