Feist v. Director, TDCJ-CID

Filing 50

MEMORANDUM ORDER overruling objections and adopting 42 Report and Recommendation. Respondent's 32 Motion to Dismiss is granted. A certificate of appealability will not be issued. Signed by District Judge Marcia A. Crone on 3/4/19. (tkd, )

UNITED STATES DISTRICT COURT

HERBERT FEIST,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:18-CV-15

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Herbert Feist, a former prisoner, 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 F. 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 for failure to exhaust state court
remedies.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings, and all available evidence. 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, the court concludes
the objections are without merit. Petitioner did not exhaust state court remedies before he filed this
petition, as required by 28 U.S.C. 2254(b). Petitioner contends that the Texas Court of Criminal
Appeals would have refused to address the merits of his claims. However, petitioner offers no

evidence in support of this assertion. Instead of filing a state application for habeas relief, in
accordance with Article 11.07 of the Texas Code of Criminal Procedure, petitioner filed a petition
for writ of mandamus. A petition for writ of mandamus is not the proper method of presenting
claims to the Texas Court of Criminal Appeals. Therefore, petitioner did not exhaust his claims by
filing the petition for writ of mandamus.
Additionally, 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; Avila v.
Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). 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).
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. The questions presented are not

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worthy of encouragement to proceed further. Therefore, the petitioner has failed to make a
sufficient showing to merit the issuance of a certificate of appealability.
ORDER
Accordingly, the petitioner’s objections (#46) are OVERRULED. The findings of fact
and conclusions of law of the magistrate judge are correct, and the report of the magistrate judge
(#42) is ADOPTED. Respondent’s motion to dismiss (#32) is GRANTED. A final judgment will
be entered in this case in accordance with the magistrate judge’s recommendation. A certificate
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of appealability will not be issued.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 4th day of March, 2019.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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