Alonzo v. Stephens
MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this petition for writ of habeas corpus be denied. A certificate of appealability will not be issued. Signed by Judge Marcia A. Crone on 1/26/16. (mrp, )
UNITED STATES DISTRICT COURT
JOSE LUIS ALONZO,
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:14-CV-372
MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Jose Luis Alonzo, a prisoner confined at the Clements 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 Keith F. Giblin, 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 filed pursuant to such order, along with the record, pleadings and all available
evidence. No objections to the Report and Recommendation of United States Magistrate Judge
were filed by the parties.
In this case, 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. Slack, 529 U.S. at 483-84. If the petition was
denied on procedural grounds, the petitioner must show that jurists of reason would find it
debatable: (1) whether the petition raises a valid claim of the denial of a constitutional right, and
(2) whether the district court was correct in its procedural ruling. Id. at 484; Elizalde, 362 F.3d
at 328. 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 Cir. 2000).
The petitioner has not shown that any of the issues raised by his claims are subject to
debate among jurists of reason. Therefore, the petitioner has failed to make a sufficient showing
to merit the issuance of a certificate of appealability.
Accordingly, the findings of fact and conclusions of law of the magistrate judge are
correct, and the report and recommendation of the magistrate judge (#19) is ADOPTED. A final
judgment will be entered in this case in accordance with the magistrate judge’s recommendation.
A certificate . appealability will not be issued.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 26th day of January, 2016.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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