Loften v. Director, TDCJ-CID

Filing 27

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATION. 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 incor rect. Petitioner has failed to make a sufficient showing to merit the issuance of a certificate of appealabilty. A final judgment will be entered in this case. A certificate of appealability will not be issued. Signed by Judge Marcia A. Crone on 6/22/16. (mrp, )

UNITED STATES DISTRICT COURT

JAMES ERIC LOFTEN,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:15-CV-152

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner James Eric Loften, a prisoner confined at the Eastham 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 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 this court.
The magistrate judge recommends dismissing the petition.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings, and all available evidence. Petitioner filed
objections to the magistrate judge’s Report and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes
the objections are without merit.
The magistrate judge’s recommendation was partially based on petitioner’s repeated claims
that he did not file this petition and does not intend to pursue it. Petitioner’s objections make clear

that he wishes to pursue the case. However, the magistrate judge also noted that the petition is
subject to dismissal because petitioner has not exhausted state court remedies.
Respondent has moved to dismiss the petition due to petitioner’s failure to present his
claims to the Texas Court of Criminal Appeals. As a prerequisite to obtaining relief under § 2254,
a prisoner must first exhaust available state remedies. 28 U.S.C. 2254(b). A prisoner has not
exhausted remedies “if he has the right under the law of the State to raise, by any available
procedure, the question presented.” 28 U.S.C. § 2254(c). To comply with the exhaustion
requirement, petitioner must fairly present his claim to the appropriate state court before filing a
petition in federal court. Picard v. Connor, 404 U.S. 270, 275 (1971); Morris v. Dretke, 379 F.3d
199, 204 (5th Cir. 2004). In Texas, all claims must be presented to, and ruled on by, the Texas Court
of Criminal Appeals. Tigner v. Cockrell, 264 F.3d 521, 526 (5th Cir. 2001); Richardson v.
Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985). Because petitioner failed to present his claims
to the Texas Court of Criminal Appeals, the petition should be dismissed for failure to exhaust
state court remedies.
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 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, petitioner need not establish that he should prevail on the merits. Rather,

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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, 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 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).
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. Therefore, petitioner has failed
to make a sufficient showing to merit the issuance of a certificate of appealability.
ORDER
Accordingly, petitioner’s objections (#25) are OVERRULED, in part. The findings of
fact and conclusions of law of the magistrate judge are correct, and the report of the magistrate
judge (#22) is ADOPTED to the extent that it recommends dismissing the petition. Respondent’s
motion to dismiss (#19) is GRANTED. A final judgment will be entered in this case. A
certificate of appealability will not be issued.
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SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 22nd day of June, 2016.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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