Richardson v. Davis
Filing
34
MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition should be dismissed as barred by limitations. Signed by District Judge Marcia A. Crone on 4/17/19. (mrp, )
UNITED STATES DISTRICT COURT
ROBERT EDWARD RICHARDSON,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.
EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:18-CV-14
MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Robert Edward Richardson, an inmate at the Hughes Unit, proceeding pro se,
brought 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, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The magistrate judge recommends the respondent’s motion to dismiss should be granted.
Accordingly, the magistrate judge recommended the petition should be dismissed as barred by
limitations
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings.
No objections to the Report and
Recommendation of United States Magistrate Judge were filed by the parties.
Furthermore, 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 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. 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.), cert. denied, 531 U.S. 849 (2000).
Here, the petitioner has not shown that any of the issues raised by his claims are subject
to debate among jurists of reason. The factual and legal questions advanced by the petitioner are
not novel and have been consistently resolved adversely to his position. In addition, the questions
presented are not worthy of encouragement to proceed further. Thus, the petitioner has failed to
make a sufficient showing to merit the issuance of a certificate of appealability. Therefore, a
certificate of appealability shall not be issued.
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. A final judgment will be entered
in this case in accordance with the magistrate judge’s recommendation.
Signed this date
Apr 17, 2019
2
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