Schmidt v. Wallace

Filing 16

ORDER adopting 14 Report and Recommendation. Signed by Judge Ron Clark on 11/6/13. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
DAVID ANDREW SCHMIDT

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 1:13-CV-83

ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Petitioner, David Andrew Schmidt, an inmate confined at the Mark Stiles Unit with the
Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and
in forma pauperis, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The court referred this matter to the Honorable Keith Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends this petition for writ of habeas corpus be denied.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record, and pleadings. No
objections to the Report and Recommendation of United States Magistrate Judge were filed by the
parties.
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. A final judgment will be entered in
this case in accordance with the Magistrate Judge’s recommendations.
Furthermore, the court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying post-conviction collateral 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, petitioner has not shown that any of the issues would be 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
certificate of appealability. Accordingly, a certificate of appealability will not be issued.
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So ORDERED and SIGNED on November ___, 2013.

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