Burden v. Walker et al
Filing
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MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be dismissed without prejudice as successive. A certificate of appealability shall not issue in this matter. Signed by Judge Marcia A. Crone on 7/21/15. (mrp, )
UNITED STATES DISTRICT COURT
DOUGLAS BURDEN,
Petitioner,
versus
LAYNE WALKER,
Respondent.
EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:15-CV-79
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Douglas Burden, 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, 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 recommending the petition be dismissed without prejudice as successive.
The court has received the Report and Recommendation, along with the record, pleadings,
and all available evidence. Petitioner 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 that the objections are
without merit.
ORDER
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 dismissing 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 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 petition is successive
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.
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SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 21st day of July, 2015.
________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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