Daugherty v. USA

Filing 15

ORDER adopting 13 Report and Recommendation. A certificate of appealability will not be issued. Signed by Judge Ron Clark on 9/18/17. (tkd, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION DERRICK TYRONE DAUGHERTY § VS. § UNITED STATES OF AMERICA § CIVIL ACTION NO. 1:16cv157 ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Movant Derrick Tyrone Daugherty, a federal prisoner, proceeding pro se, brought this motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. 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 above-styled petition be dismissed. 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 were filed by the parties.1 1 Additionally, petitioner’s ground for review is not based on a retroactively applicable Supreme Court decision. In Mathis, the Supreme Court held that when determining whether a prior conviction qualifies as a predicate offense under the Armed Career Criminal Act, a sentencing court may subdivide the statute forming the basis for the prior conviction only if the statute contains multiple elements constituting separate crimes rather than simply multiple means of committing the same offense. United States v. Wright, ___ F. App’x ___, 2017 WL 1032310 (5th Cir. Mar. 15, 2017). The holding in Mathis “provided helpful guidance for determining whether a predicate statute of conviction is divisible.” United States v. Uribe, 838 F.3d 667, 670 (5th Cir. 2016). However, Mathis did not announce a new rule and it was not made retroactively applicable to cases on collateral review. Mathis, 136 S.Ct. at 2257 (noting that decision was dictated by decades of prior precedent); In re Lott, 838 F. 3d 522, 523 (5th Cir. 2016). “[T]he Supreme Court explicitly stated in Mathis that it was not announcing a new rule and that its decision was dictated by decades of prior precedent . . . . Thus, Mathis did not announce a new rule. And courts applying Mathis have consistently reached the same conclusion.” United States v. Taylor, 672 F. App’x 860, 864 (10th Cir. 2016). Furthermore, movant 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 movant 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 movant need not establish that he should 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 is 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). Here, movant has not shown that any of the issues raised by his claims are subject to debate among jurists of reason. The factual and legal questions advanced by the movant are not novel and have been consistently resolved adversely to his position. In addition, the questions presented are not worthy of encouragement to proceed further. Therefore, movant has failed to make a sufficient showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of appealability shall not be issued. 2 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. So Ordered and Signed Sep 18, 2017 3

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