Loften v. Director, TDCJ-CID

Filing 50

MEMORANDUM ORDER overruling objections and adopting the magistrate judge's 47 Report and Recommendation. A certificate of appealability shall not issue in this matter. Signed by District Judge Marcia A. Crone on 8/30/2018. (bjc, )

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-323

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, James Eric Loften, an inmate 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 Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends the petition for writ of habeas corpus be denied.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record, and pleadings. Petitioner
filed objections to the Magistrate Judge’s Report and Recommendation. This requires 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 finds petitioner’s objections are without merit.

ORDER
Accordingly, the objections of petitioner 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 recommendations.
In addition, the court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying post-conviction collateral 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.), cert. denied, 531 U.S. 849 (2000).

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In this case, the petitioner has not shown that the issues are subject to debate among jurists
of reason or worthy of encouragement to proceed further. As a result, a certificate of appealability
shall not issue in this matter.

Signed this date
Aug 30, 2018

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