Bennett v. Texas Department of Criminal Justice et al

Filing 7

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be dismissed without prejudice pursuant to FRCP 41(b). A certificate of appealability shall not issue. Signed by Judge Marcia A. Crone on 3/19/14. (mrp, )

UNITED STATES DISTRICT COURT

JAMES LEE BENNETT,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:13-CV-559

MEMORANDUM ORDER ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner James Lee Bennett, 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, for consideration pursuant to applicable laws and orders of this court. The magistrate judge
has submitted a Report and Recommendation of United States Magistrate Judge recommending the
petition be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b).
The court has received the Report and Recommendation of United States Magistrate Judge,
along with the record, pleadings, and all available evidence. No objections were filed to the
magistrate judge’s 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. 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 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. 2000).
Here, the petitioner has not shown that the issue of whether his petition should be
dismissed for want of prosecution is subject to debate among jurists of reason. The factual and
legal questions 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

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appealability shall not issue.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 19th day of March, 2014.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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