Kirby v. Director, TDCJ-CID

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 17 Report and Recommendations and petitioners objections are OVERRULED.. Signed by Judge David Folsom on 1/19/2010. (sm, ) Modified on 1/19/2010 (sm, ).

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION RAYMOND KIRBY VS. DIRECTOR, TDCJ-CID CIVIL ACTION NO. 5:07cv91 MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION Petitioner Raymond Kirby, an inmate confined at the Dalhart Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, 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 Earl S. Hines, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The Magistrate Judge recommends the petition be dismissed. The court has received and considered the Report and Recommendation of United States Magistrate Judge filed pursuant to such order, 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 petitioner's objections are without merit and should be overruled. As the magistrate judge determined, petitioner is not entitled to credit for time spent on mandatory supervision once his supervised release is revoked. See TEX. GOV'T CODE ANN. 508.283 and 497.004. Thus, petitioner's claim for good time credits lost as the result of a prison disciplinary case is now moot, based upon his return to prison.1 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 1 Additionally, to the extent petitioner's habeas petition could be liberally interpreted as asserting civil rights claims, the c la im s are without merit because petitioner has failed to allege or demonstrate that either Warden Yarbrough or Brad Livin gston , the Director of the Texas Department of Criminal Justice, were personally involved. See Jacquez v. Procunier, 8 0 1 F.2d 789, 793 (5th Cir. 1986). Supervisory officials are not liable for subordinates' actions on a vicarious liability theory. O live r v. Scott, 276 F.3d 736, 742 (5th Cir. 2002). 2 presented are not 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. Accordingly, a certificate of appealability shall not be issued. ORDER Accordingly, petitioner's objections 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 in this case in accordance with the magistrate judge's recommendations. SIGNED this 19th day of January, 2010. ____________________________________ DAVID FOLSOM UNITED STATES DISTRICT JUDGE 3

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