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, )

UNITED STATES DISTRICT COURT

ERIC BERNARD MCGOWEN,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS

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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

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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

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