Nelson v. Stephens

Filing 22

MEMORANDUM ORDER adopting the magistrate judge's 20 Report and Recommendation. Furthermore, the court is of the opinion petitioner is not entitled to a certificate of appealability.. Signed by Judge Thad Heartfield on 7/17/2017. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
DAMION KEITH NELSON

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 1:15-CV-381

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Petitioner, Damion Keith Nelson, a state prisoner confined at the Wynne Unit with 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 Giblin, United States Magistrate Judge,
at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The
Magistrate Judge recommends the petition be dismissed with prejudice as exhausted and timebarred.
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. No objections
to the Report and Recommendation of United States Magistrate Judge have been filed to date. 1
ORDER
Accordingly, 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.
Furthermore, 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

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Petitioner received a copy of the Report and Recommendation on May 19, 2017 (docket entry no. 21).

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 movant, 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).
In this case, petitioner has not shown that the issue would be subject to debate among jurists
of reason. 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 certificate of
appealability. Accordingly, a certificate of appealability will not be issued.
SIGNED this the 17 day of July, 2017.

____________________________
Thad Heartfield
United States District Judge

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