Clark v. Warden FCI Beaumont Low
***FILED IN WRONG CASE. PLEASE IGNORE.*** MEMORANDUM ORDER overruling petitioner's objections and adopting the 3 Report and Recommendation. Accordingly, a certificate of appealability shall not be isued. Signed by Judge Thad Heartfield on 2/9/2017. (bjc, ) Modified on 2/9/2017 (bjc, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:14cv327
MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Ray Earnest, an inmate confined at the Ney Unit of the Texas Department of
Criminal Justice, Correctional Institutions Division, proceeding pro se, brought 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.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, pleadings and all available
evidence. Petitioner filed objections to the magistrate judge’s Report and Recommendation.
The court 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
petitioner’s objections should be overruled.
Federal habeas relief from a state court’s determination is precluded “so long as fairminded
jurists could disagree on the correctness of the state court’s decision.” Harrington v. Richter, 562
U.S. 86, 101 (2011). A determination of a factual issue made by a state court shall be presumed to
be correct upon federal habeas review of the same claim. The petitioner shall have the burden of
rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). A decision is
contrary to clearly established federal law if the state reaches a conclusion opposite to a decision
reached by the Supreme Court on a question of law or if the state court decides a case differently
than the Supreme Court has on a set of materially indistinguishable facts. See Williams v. Taylor, 529
U.S. 362, 412-13 (2000). An application of clearly established federal law is unreasonable if the state
court identifies the correct governing legal principle, but unreasonably applies that principle to the
facts. Id. State court decisions must be given the benefit of the doubt. Renico v. Lett, 559 U.S. 766,
The question for federal review is not whether the state court decision was incorrect, but
whether it was unreasonable, which is a substantially higher threshold. Schriro v. Landrigan, 550
U.S. 465, 473 (2007). Federal courts look to the “last reasoned opinion” as the state court’s
“decision.” Salts v. Epps, 676 F.3d 468, 479 (5th Cir. 2012). If a higher state court offered different
grounds for its ruling than a lower court, then only the higher court’s decision is reviewed.” Id.
“Where a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden
still must be met by showing there was no reasonable basis for the state court to deny relief.”
Harrington, 526 U.S. at 98; see also Johnson v. Williams,
, 133 S. Ct. 1088, 1091 (2013)
(holding there is a rebuttable presumption that the federal claim was adjudicated on the merits when
the state court addresses some claims, but not others, in its opinion).
Federal courts are required to give great deference to a state court’s factual findings. Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1) provides that a determination of a
factual issue made by a state court shall be presumed to be correct. This presumption of correctness
applies to both explicit findings of fact and those findings of fact implicit in the state court’s mixed
law and fact conclusions. Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir. 2001). The applicant
has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28
U.S.C. § 2254(e)(1). Typically, when the Texas Court of Criminal Appeals denies relief in a state
habeas corpus application without written order, it is an adjudication on the merits that is entitled
to this presumption. Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Ex parte Torres, 943
S.W.2d 469, 472 (Tex.Crim.App. 1997).
Federal habeas courts are not an alternative forum for trying facts and issues which were
insufficiently developed in state proceedings. Williams v. Taylor, 529 U.S. 420, 437 (2000).
Further, following the Supreme Court’s decision in Cullen v. Pinholster, federal habeas review under
2254(d)(1) “is limited to the record that was before the state court that adjudicated the claim on the
merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
Here, for the reasons set forth in the Report, petitioner has failed to satisfy his burden of
proof concerning the claims presented in this petition. Assuming, arguendo, that petitioner’s Brady
claim was exhausted as he claims, the Texas Court of Criminal Appeals denied the claim. This court
finds petitioner has failed to overcome his burden regarding his claims. Petitioner has not shown,
as required by 28 U.S.C. § 2254(d), that the State court findings resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal law as determined
by the Supreme Court of the United States, or resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceedings. Accordingly, the petition should be denied.
Furthermore, 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 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, petitioner 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 petitioner 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, petitioner 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.
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
SIGNED this the 9 day of February, 2017.
United States District Judge
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