Wilson v. Cain et al

Filing 9

ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be dismissed without prejudice because petitioner has not exhausted his state remedies. A certificate of appealability shall not issue in this matter.Signed by District Judge Ron Clark on 8/19/18. (mrp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
ERIC D. WILSON

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VS.

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CHAP B. CAIN

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CIVIL ACTION NO. 1:17cv383

ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Eric D. Wilson filed what has been liberally construed as a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The court previously referred this matter to the Honorable Zack
Hawthorn, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to 28
U.S.C. § 636 and applicable orders of this court. The Magistrate Judge has submitted a Report and
Recommendation of United States Magistrate Judge concerning this matter. The Magistrate Judge
recommends that the petition be dismissed without prejudice because petitioner has not exhausted
his state remedies.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. No objections were filed to the Report
and Recommendation.
ORDER
Accordingly, the findings of fact and conclusions of law of the Magistrate Judge are correct
and the report of the Magistrate Judge is ADOPTED as the opinion of the court. A final judgment
shall be entered dismissing the petition in accordance with the recommendation of the Magistrate
Judge.
In addition, the court is of the opinion petitioner is not entitled to a certificate of appealability
in this matter. An appeal from a judgment denying federal 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; Elizalde v. Dretke, 362 F.3d 323,
328 (5th Cir. 2004). To make a substantial showing, the petitioner need not demonstrate that he
would prevail on the merits. Rather, he must demonstrate that the issues he raised 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 he has exhausted his state
remedies is subject to debate among jurists of reason. The factual and legal issues raised by
petitioner have been consistently resolved adversely to his position and the questions presented are
not worth of encouragement to proceed further. As a result, a certificate of appealability shall not
issue in this matter.
So ORDERED and SIGNED this 19 day of August, 2018.

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Ron Clark, Senior District Judge