Stewart v. Director, TDCJ-CID
MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. The petitioner has failed to make a sufficient showing to merit the issuance of a certificate of appealabilty. A certificate of appealability will not be issued. Signed by Judge Marcia A. Crone on 6/23/14. (mrp, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:14-CV-155
MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Kelvin Stewart, a prisoner confined at the Stiles Unit of the Texas Department
of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The court ordered that this matter be referred to the Honorable Zack Hawthorn, United
States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and
orders of this court. The magistrate judge recommends denying the petition.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings, and all available evidence. Petitioner filed
objections to the magistrate judge’s Report and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes
the objections are without merit.
Additionally, the petitioner is not entitled to the issuance of a certificate of appealability.
An appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge
issues a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard
for granting a certificate of appealability, like that for granting a certificate of probable cause to
appeal under prior law, 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); see also Barefoot v. Estelle, 463 U.S. 880, 893
(1982). In making that substantial showing, the petitioner need not establish that he should 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; Avila v.
Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). Any doubt regarding whether to grant a
certificate of appealability is 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
The petitioner has not shown that any of the issues raised by his claims are 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 a certificate of appealability.
Accordingly, petitioner’s objections are OVERRULED.
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 recommendation. A certificate of appealability will not be issued.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 23rd day of June, 2014.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?