Nix v. McClarin et al

Filing 19

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATION that the petition be denied with prejudice. A certificate of appealability shall not issue in this matter. Signed by Judge Marcia A. Crone on 6/14/17. (mrp, )

UNITED STATES DISTRICT COURT

ROSS WAYNE NIX,
Petitioner,
versus
DIRECTOR, TDCJ-ID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:16-CV-496

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Ross Wayne Nix, an inmate confined at the Wynne Unit of 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. Petitioner challenges a prison disciplinary
conviction.
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 the court.
The magistrate judge has submitted a Report and Recommendation of United States Magistrate
Judge recommending the petition be denied with prejudice.
The court has received the Report and Recommendation of United States Magistrate Judge,
along with the record, pleadings, and all available evidence. Petitioner filed objections to the
Report and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. After careful consideration, the court is of the opinion the objections are
without merit. In his objections, petitioner contends he was denied due process of law because

procedural rules were not followed during his disciplinary proceeding. However, the magistrate
judge correctly stated that as petitioner is not eligible for release on mandatory supervision, he was
not entitled to due process of law before receiving the punishment imposed as a result of the
disciplinary conviction. Madison v. Parker, 104 F.3d 765, 769 (5th Cir. 1997); Orlenna v. Kyle,
65 F.3d 29, 31-33 (5th Cir. 1995).
ORDER
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 denying the petition.
In addition, the court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a final judgment denying habeas 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). In order to make a substantial showing, the petitioner need not
establish that he would prevail on the merits. Rather, he must demonstrate that the issues raised
in the petition 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.
2000).

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In this case, the petitioner has not shown that the issues raised are subject to debate among
jurists of reason. The factual and legal questions raised by petitioner have been consistently
resolved adversely to his position and the questions presented are not 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 14th day of June, 2017.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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