McGowen v. Director, TDCJ-CID

Filing 21

ORDER adopting 20 Report and Recommendation. A certificate of appealability will not be issued. Signed by District Judge Marcia A. Crone on 2/7/24. (tkd, )

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UNITED STATES DISTRICT COURT ERIC BERNARD MCGOWEN, Petitioner, versus DIRECTOR, TDCJ-CID, Respondent. EASTERN DISTRICT OF TEXAS § § § § § § § § § CIVIL ACTION NO. 1:21-CV-14 ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Petitioner Eric Bernard McGowen, 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 Christine L. Stetson, United States Magistrate Judge, for consideration pursuant to the applicable laws and orders of this court. The magistrate judge entered a Report and Recommendation in which she recommended denying and dismissing the petition. To date, the parties have not filed objections to the Report and Recommendation. The court received and considered the Report and Recommendation of United States Magistrate Judge pursuant to such referral, along with the record, pleadings and all available evidence. After careful review, the court finds that the findings of facts and conclusion of law of the United States Magistrate Judge are correct. Accordingly, the Report and Recommendation of the United States Magistrate Judge (#20) is ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge’s recommendation. Furthermore, 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 movant 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 movant 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 motion was denied on procedural grounds, the movant must show that jurists of reason would find it debatable: (1) whether the motion 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 the movant, 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 is incorrect. In addition, the questions presented by Petitioner are not worthy of encouragement to proceed further. Petitioner has failed 2 to make a sufficient showing to merit the issuance of a certification of appealability. Thus, a certificate of appealability will not be issued. SIGNED at Beaumont, Texas, this 7th day of February, 2024. ________________________________________ MARCIA A. CRONE UNITED STATES DISTRICT JUDGE 3

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