Gordon v. Director, TDCJ-CID

Filing 25

MEMORANDUM ORDER adopting the magistrate judge's 23 Report and Recommendations. A certificate of appealability shall not issue in this matter. Signed by Judge Marcia A. Crone on 7/20/2017. (bjc, )

UNITED STATES DISTRICT COURT

GARY DWIGHT GORDON, JR.,
Petitioner,
versus
DIRECTOR, TDCJ-ID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:14-CV-263

MEMORANDUM ORDER ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Gary Dwight Gordon, Jr., 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, at Beaumont, Texas, for consideration pursuant to applicable laws
and orders of the court.
The magistrate judge has submitted a Report and Recommendation of United States
Magistrate Judge concerning this matter. The magistrate judge recommends the petition be
denied.1
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.
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 denying
the petition.
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The magistrate judge concluded the petition was without merit and barred by the applicable statute of
limitations.

In addition, the court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a final 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).
In this case, the petitioner has not shown that the issue of whether his claims are
meritorious or barred by the applicable statute of limitations 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 this 20th day of July, 2017.

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