Mendoza v. Worthy

Filing 7

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this petition for writ of habeas corpus be dismissed for want of prosecution. Signed by Judge Marcia A. Crone on 12/21/16. (mrp, )

UNITED STATES DISTRICT COURT

ALVINO L. MENDOZA,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:16-CV-121

MEMORANDUM ORDER ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Alvino L. Mendoza, an inmate confined at the Allred Unit with the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma
pauperis, 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 this petition for writ of habeas corpus be dismissed for want
of prosecution pursuant to Federal Rule of Civil Procedure 41(b).
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 have been filed to date.1

1

Petitioner received a copy of the Report and Recommendation on October 25, 2016 (docket entry no. 6).

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.
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 at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 21st day of December, 2016.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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