Lacy v. State Of Texas
ORDER adopting the magistrate judge's 3 Report and Recommendation. A certificate of appealability shall not issue in this matter. Signed by Judge Ron Clark on 1/6/2014. (bjc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:13cv359
ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Michael Lacy, 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 Zack Hawthorn, 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 denied.
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 his petition is
meritorious 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 this 6 day of January, 2014.
Ron Clark, United States District Judge
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