Hawkins v. Director, TDCJ-CID

Filing 11

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be dismissed as successive. The petitioner has not shown that the issue of whether his filing is successive is subject to debate among jurists of reason. A certificate of appealability shall not issue in this matter. Signed by Judge Marcia A. Crone on 6/6/17. (mrp, )

UNITED STATES DISTRICT COURT

JOHN F. HAWKINS,
Petitioner,
versus
DIRECTOR, TDCJ-ID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:16-CV-506

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
John F. Hawkins, 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, for consideration. The magistrate judge has submitted a Report and
Recommendation of United States Magistrate Judge recommending the petition be dismissed as
successive.
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 must therefore conduct a de novo review of the

objections in relation to the pleadings and the applicable law.
Petitioner styled his initial pleading as a “Request for an Evidentiary Hearing.” He asked
the court to conduct an evidentiary hearing in connection with his assertion that he received
ineffective assistance of counsel in connection with a state criminal proceeding which resulted in
a conviction for aggravated robbery. He faulted the state habeas trial court for not conducting a
hearing in connection with a state application for writ of habeas corpus. The magistrate judge

construed the filing as a petition for writ of habeas corpus. After observing that a previous
petition challenging the same conviction had been dismissed as barred by the applicable statute of
limitations, the magistrate judge concluded that the current petition should be dismissed as
successive.
In his objections, petitioner states he has satisfied the applicable statutory standard and is
entitled to an evidentiary hearing. However, this court could only conduct an evidentiary hearing
in connection with a properly filed petition for writ of habeas corpus. As a prior petition
challenging petitioner’s aggravated robbery conviction was dismissed as barred by the applicable
statute of limitations, this court could only consider a petition challenging the same conviction if
the United States Court of Appeals for the Fifth Circuit had granted petitioner permission to
proceed with a successive petition. In re Flowers, 595 F.3d 204, 205 (5th Cir. 2009). Petitioner
does not allege he has received such permission. This court therefore lacks jurisdiction to
entertain a challenge to his aggravated robbery conviction.
ORDER
Accordingly, the objections filed by the parties 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 without
such a certificate. See 28 U.S.C. § 2253. To be entitled to a certificate of appealability, the
petitioner must make a substantial showing of the denial of a federal constitutional right. See Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000). To make a substantial showing, the petitioner need

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not establish 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. 2000).
In this case, the petitioner has not shown that the issue of whether his filing is successive
is 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 6th day of June, 2017.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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