Henry v. Director, TDCJ-CID
MEMORANDUM ORDER overruling petitioner's objections and adopting the magistrate judge's 3 Report and Recommendation. A certificate of appealability will not be issued. Signed by Judge Thad Heartfield on 7/29/2015. (bjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
WILLIE HENRY, III
CIVIL ACTION NO. 1:15-CV-155
MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Willie Henry, III, a prisoner confined at the Wynne Unit of the Texas Department
of Criminal Justice, Correctional Institutions Division, proceeding pro se, brought 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, for consideration pursuant to applicable laws and orders of this Court. The
magistrate judge recommends dismissing the petition without prejudice as a successive petition, filed
without authorization from the United States Court of Appeals for the Fifth Circuit.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and the pleadings. 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. Petitioner argues this petition is not successive because he filed it
under 28 U.S.C. § 2241, not § 2254. Regardless of the title the petition is given, it is successive if
it raises a claim challenging petitioner’s conviction or sentence that could have been raised in an
earlier petition, or if it otherwise constitutes an abuse of the writ. In re Sepulvado, 707 F.3d 550,
553(5th Cir. 2013). This petition is successive because petitioner challenges his conviction, and his
claims could have been raised in an earlier petition.
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).
Here, the 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. Therefore, the petitioner has failed
to make a sufficient showing to merit the issuance of a certificate of appealability.
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 in this case in accordance with the magistrate judge’s
recommendation. A certificate of appealability will not be issued.
SIGNED this the 29 day of July, 2015.
United States District Judge
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