Bell v. Director, TDCJ-CID
MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be dismissed as barred by the statute of limitations. A certificate of appealability will not be issued.Signed by Judge Marcia A. Crone on 5/22/17. (mrp, )
UNITED STATES DISTRICT COURT
TOMASINA NICOLE BELL,
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:17-CV-118
MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Tomasina Nicole Bell, a prisoner confined at the Hobby 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.
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 dismissing the petition as barred by the statute of limitations.
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. No objections to the Report and Recommendation of United States Magistrate Judge
were filed by the parties.
In this case, the 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 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); see also Barefoot v. Estelle, 463 U.S. 880, 893
(1982). In making that substantial showing, the petitioner need not establish that she should
prevail on the merits. Rather, she 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. Slack, 529 U.S. at 483-84. If the
petition was denied on procedural grounds, the petitioner must show that jurists of reason would
find it debatable: (1) whether the petition raises a valid claim of the denial of a constitutional
right, and (2) whether the district court was correct in its procedural ruling. Id. at 484; Elizalde,
362 F.3d at 328. Any doubt regarding whether to grant a certificate of appealability is 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).
The petitioner has not shown that any of the issues raised by her claims are subject to
debate among jurists of reason or that a procedural ruling was incorrect. Therefore, the petitioner
has failed to make a sufficient showing to merit the issuance of a certificate of appealability.
Accordingly, the findings of fact and conclusions of law of the magistrate judge are
correct, and the report and recommendation of the magistrate judge (#3) is ADOPTED. A final
judgment will be entered in this case in accordance with the magistrate judge’s recommendation.
A certificate of appealability will not be issued.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Plano, Texas, this 22nd day of May, 2017.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?