Schmidt v. Director, TDCJ-CID
MEMORANDUM ORDER adopting the magistrate judge's 16 Report and Recommendation. A certificate of appealability will not be issued. Signed by Judge Thad Heartfield on 7/17/2017. (bjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
DAVID ANDREW SCHMIDT
CIVIL ACTION NO. 1:14-CV-422
MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner David Andrew Schmidt, a prisoner confined at the Stiles Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, 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 granting respondent’s motion to dismiss 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 and the pleadings. No
objections to the Report and Recommendation of United States Magistrate Judge were filed by the
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. See Slack, 529 U.S. at 483-84; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.
2009). 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. Slack, 529
U.S. 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).
In this case, petitioner has not shown that any of the issues raised by his claims are subject
to debate among jurists of reason, or that a procedural ruling was incorrect. In addition, the
questions presented are not worthy of encouragement to proceed further. 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 of the magistrate judge (document no. 16) is ADOPTED. Respondent’s motion to
dismiss the petition as moot (document no. 12) is GRANTED. 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 this the 17 day of July, 2017.
United States District Judge
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