Andrew v. Director, TDCJ

Filing 5

MEMORANDUM ORDER overruling petitioner's objections and adopting the magistrate judge's 2 Report and Recommendation. Signed by Judge Thad Heartfield on 9/18/2017. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
JUSTIN DEMOND ANDREW

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 1:17-CV-285

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Justin Demond Andrew, a prisoner confined in the Texas Department of Criminal
Justice, Correctional Institutions Division, brought this petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254.
The court ordered that this matter be referred to the Honorable Zack Hawthorn, United States
Magistrate Judge, 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, along with the record and the pleadings. Petitioner filed objections to the
magistrate judge’s report and recommendation.
The court has 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 of all the pleadings and
the relevant case law, the court concludes that petitioner’s objections lack merit. Petitioner contends
that the procedural bar must be excused because he is actually innocent of the offense. See
McQuiggin v. Perkins,

U.S.

, 133 S. Ct. 1924 (2013). The United States Supreme Court has

not recognized a freestanding claim of actual innocence as a ground for federal habeas relief.

McQuiggin, 133 S. Ct. at 1931; Burton v. Stephens, 543 F. App’x 451, 458 (5th Cir. 2013); Dowthitt
v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000). However, actual innocence, if proved, may excuse
a procedural bar to federal habeas review of constitutional claims. McQuiggin, 133 S. Ct. at 1928.
To pass through the actual innocence gateway, petitioner must show that, in light of new, reliable
evidence, no jury would have found him guilty beyond a reasonable doubt. Id. Petitioner failed to
meet this standard because he did not present any newly-discovered evidence that would have
resulted in his acquittal.
Petitioner requests an evidentiary hearing. Because there are no material facts in dispute, an
evidentiary hearing is not necessary in this case.
In this case, 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 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, petitioner 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; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.
2009). If the petition was denied on procedural grounds, petitioner must show that jurists of reason

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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. Slack, 529 U.S. at 484;
Elizalde, 362 F.3d at 328. Any doubt regarding whether to grant a certificate of appealability is
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. 2000).
Here, petitioner has not shown that any of the issues raised by his claims are subject to debate
among jurists of reason, or that a procedural ruling was incorrect. 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.
ORDER
Accordingly, petitioner’s objections (document no. 3) are OVERRULED. The findings of
fact and the conclusions of law of the magistrate judge are correct, and the report and
recommendation of the magistrate judge (document no. 2) 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 this the 18 day of September, 2017.

____________________________
Thad Heartfield
United States District Judge

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