Arceneaux v. Director, TDCJ-CID

Filing 45

MEMORANDUM ORDER overruling objections and adopting 41 Report and Recommendation. A certificate of appealability will not issue in this matter. Signed by District Judge Marcia A. Crone on 8/2/21. (tkd, )

Case 1:18-cv-00246-MAC-KFG Document 45 Filed 08/02/21 Page 1 of 3 PageID #: 1073

UNITED STATES DISTRICT COURT
JAMES ARCENEAUX,
Petitioner,
versus
DIRECTOR, TDCJ-ID,
Respondent.

EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:18-CV-246

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
James Arceneaux, proceeding pro se, filed this petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. The court previously 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 the court. The magistrate judge has submitted a Report and Recommendation of
United States Magistrate Judge recommending the petition be denied.
The court has received the Report and Recommendation of United States Magistrate Judge,
along with the record, pleadings, and all available evidence. Petitioner filed two sets of objections
to the Report and Recommendation. The court must therefore conduct a de novo review of the
objections in relation to the pleadings and the applicable law.
The magistrate judge recommended that certain of petitioner’s grounds for review be
dismissed as procedurally barred and that two grounds for review be denied on the merits.
In one of his grounds for review, petitioner asserted the trial judge improperly told the jury
to either find petitioner guilty or pay a small penalty. The magistrate judge recommended this
ground for review be denied because there was no evidence in the record to support it. Despite
petitioner’s objections, the court agrees. The transcript does not contain the remarks petitioner
describes. Petitioner’s own self-serving statement is the only evidence that supports his claim.
Such evidence is insufficient to provide a basis for relief in this proceeding.

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In his objections, petitioner raises grounds for review which were not presented to the
Texas Court of Criminal Appeals or previously in this proceeding. As the Court of Criminal
Appeals would reject as an abuse of the writ a subsequent application asserting these grounds for
review, Ex parte Barber, 879 S.W.2d 889, 892 n.1 (Tex.Crim.App. 1994), consideration of these
grounds for review is procedurally barred. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997).
ORDER
Accordingly, the objections filed by petitioner are OVERRULED. 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 dismissing the petition.
In addition, the court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a final judgment denying habeas relief may not proceed unless a
certificate of appealability is issued. 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 (2000); Elizalde v. Dretke, 362
F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, the petitioner is not required to
establish that he would prevail on the merits. Rather, he must demonstrate that the issues raised
in the petition 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 issues raised by petitioner are subject to
debate among jurists of reason. The factual and legal questions raised by petitioner have been
consistently resolved adversely to his position and the questions presented are not worthy of

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encouragement to proceed further. As a result, a certificate of appealability shall not issue in this
matter.
SIGNED at Beaumont, Texas, this 2nd day of August, 2021.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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