Pinchback v. State Of Texas
ORDER adopting 8 Report and Recommendation. Signed by Judge Ron Clark on 8/30/13. (tkd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:13cv43
ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Michael Pinchbacl, proceeding pro se, filed the above-styled petition for writ of
habeas corpus. 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 as repetitious.
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
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 this petition is
repetitious 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.
So ORDERED and SIGNED on August ____, 2013.
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