Allen v. Director, TDCJ-CID

Filing 11

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this petition be dismissed as barred by the statute of limitations. Respondent's motion to dismiss # 7 is granted. A certificate of appealability will not be issued. Signed by Judge Marcia A. Crone on 9/7/16. (mrp, )

UNITED STATES DISTRICT COURT

CHRISTINE DENISE ALLEN,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:16-CV-55

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Christine Denise Allen, a prisoner confined at the Crain 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 as barred by the statute of limitations.
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. Petitioner argues the petition is not barred by the statute of
limitations because Norris Narcisse’s statement was newly-discovered evidence that she did not
receive until May of 2014. As noted by the magistrate judge, the statement was not newly-

discovered evidence because it was not factually different than the statement Mr. Narcisse gave
prior to trial. The first statement was available to petitioner prior to trial, and she could have
called Mr. Narcisse to testify at trial.
Additionally, 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 she should
prevail on the merits. Rather, she 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). 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).
Petitioner has not shown that any of the issues raised by her claims are 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
a certificate of appealability.

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ORDER
Accordingly, the petitioner’s objections (#10) are OVERRULED. The findings of fact
and conclusions of law of the magistrate judge are correct, and the report of the magistrate judge
(#8) is ADOPTED. Respondent’s motion to dismiss (#7) is GRANTED. A final judgment will
be entered in this case in accordance with the magistrate judge’s recommendation. A certificate

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of appealability will not be issued.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Plano, Texas, this 7th day of September, 2016.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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