Tomchik v. Director, TDCJ-CID
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be dismissed as barred by the applicable statute of limitations. Signed by Judge Thad Heartfield on 1/3/17. (mrp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
EARL JAMES TOMCHIK, JR.
CIVIL ACTION NO.1:16-CV-280
MEMORANDUM ORDER OVERRULING OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Earl James Tomchik, Jr., an inmate confined at the L.V. Hightower 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 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 be dismissed as barred by the applicable statute of
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, and pleadings. Petitioner filed
objections to the Report and Recommendation of United States Magistrate Judge. This requires a
de novo review of the objections in relation to the pleadings and applicable law. See FED. R. CIV.
After careful consideration, the Court finds the objections lacking in merit. Petitioner states
he “assumed that once he had accepted the state’s plea agreement of fourteen years’ of confinement
in the TDCJ and lifetime registration as a sex offender that due diligence is no longer considered in
his particular situation as he understood that he was not entitled to any form of an appeal.”
Objections (docket entry no.9). Ignorance of the law, however, is not itself a basis for equitable
tolling of a statute of limitations, even for pro se prisoners. Felder v. Johnson, 204 F.3d 168, 174
(5th Cir. 2000) (citing Fisher v. Johnson, 174 F.3d 710 714 (5th Cir. 1999).
Accordingly, petitioner’s objections 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
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
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).
In this case, petitioner has not shown that any of the issues 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 3 day of January, 2017.
United States District Judge
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