Brooks v. GROUNDS

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 4 Report and Recommendations. Signed by Judge Michael H. Schneider on 9/19/12. (mrm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
CHARLES D. BROOKS

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 5:12cv83

MEMORANDUM ORDER ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Charles D. Brooks, proceeding pro se, filed the above-styled petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a prison disciplinary
conviction.
The Court referred this matter to the Honorable Caroline M. Craven, United States
Magistrate Judge, for consideration pursuant to 28 U.S.C. § 636 and applicable orders of this
court. The Magistrate Judge has submitted a Report and Recommendation of United States
Magistrate Judge concerning this matter. The Magistrate Judge recommends the petition be
dismissed as barred by the applicable statute of limitations.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. No objections were filed to the Report
and Recommendation.
ORDER
Accordingly, the findings of fact and conclusions of law of the Magistrate Judge are
correct and the report of the Magistrate Judge is ADOPTED as the opinion of the Court. A final
judgment shall be entered in accordance with the recommendation of the Magistrate Judge.
In addition, the Court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying federal habeas relief may not proceed unless a
judge issues a certificate of appealability. See 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 need not
demonstrate that he would 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
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.), cert. denied,
531 U.S. 849 (2000).
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In this case, the petitioner has not shown that the issue of whether his claims are barred by
the statute of limitations is 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 encouragement to proceed further. As a result, a certificate
of appealability shall not issue in this matter.
It is SO ORDERED.
SIGNED this 19th day of September, 2012.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE