Guillory v. Livingston
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be denied. A certificate of appealability shall not issue in this matter. Signed by Judge Marcia A. Crone on 5/11/17. (mrp, )
UNITED STATES DISTRICT COURT
HEYMAN HAROLD GUILLORY,
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:14-CV-669
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Heyman Harold Guillory, proceeding pro se, filed this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated pursuant to a conviction for capital
The court referred this matter to the Honorable Keith F. Giblin, United States Magistrate
Judge, for consideration. The magistrate judge has submitted a Report and Recommendation of
United States Magistrate Judge recommending the petition be denied.
The court has received the Report and Recommendation of United States Magistrate Judge,
along with the record, pleadings, and all available evidence. The parties filed objections to the
Report and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. After careful consideration, the court is of the opinion the objections are
without merit. Petitioner complains he has been improperly denied relief in several proceedings
seeking DNA testing pursuant to Article 64.01 of the Texas Code of Criminal Procedure. Despite
petitioner’s objections, the magistrate judge correctly concluded petitioner’s claim does not
provide a basis for federal habeas relief. The respondent complains that the magistrate judge did
not consider the argument that the petition should be dismissed as successive. However, as the
magistrate judge correctly concluded the petition did not state a basis for federal habeas relief,
there was no need to also consider the argument that the petition was successive.
Accordingly, the objections filed by the parties 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 denying the petition.
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 without
such a certificate. See 28 U.S.C. § 2253. To be entitled to a certificate of appealability, the
petitioner must make a substantial showing of the denial of a federal constitutional right. See Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000). To make a substantial showing, the petitioner need
not establish 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 issues raised are 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.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 11th day of May, 2017.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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