Cole v. Davis

Filing 11

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S 8 REPORT AND RECOMMENDATION. Signed by District Judge Thad Heartfield on 10/26/18. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
DONALD RAY COLE

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 1:16-CV-323

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Petitioner, Donald Ray Cole, an inmate formerly confined at the Hodge 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 the petition for writ of habeas corpus be denied 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 of United States Magistrate Judge have been filed to date.
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 that 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 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, 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
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 the issue would be subject to debate among jurists
of reason. The questions presented are not worthy of encouragement to proceed further. Therefore,
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 26 day of October, 2018.

____________________________
Thad Heartfield
United States District Judge

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