Davis v. Gist
ORDER adopting 28 Report and Recommendation and granting 21 Motion to Dismiss. A certificate of appealability will not be issued. Signed by Judge Ron Clark on 12/19/16. (tkd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:15cv206
ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Fidel Davis, proceeding pro se, filed the above-styled 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 28 U.S.C. § 636 and applicable orders
of this court. The Magistrate Judge has submitted a Report and Recommendation of United States
Magistrate Judge recommending that a motion to dismiss filed by the respondent be granted.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. No objections were filed to the Report and
Accordingly, the findings of fact and conclusions of law of the Magistrate Judge are correct
and the report of the Magistrate Judge is ADOPTED as the opinion of the court. The respondent’s
motion to dismiss is GRANTED. An appropriate final judgment shall be entered.
In addition, the court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying federal habeas relief may not proceed unless a
judge issues a certificate of appealability. See 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 demonstrate
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 issues raised are subject to debate among
jurists of reason. The relevant factual and legal questions have been consistently resolved adversely
to petitioner 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.
So Ordered and Signed
Dec 19, 2016
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