Conway v. Dir TDCJ

Filing 15

MEMORANDUM ORDER ADOPTING 13 REPORT AND RECOMMENDATIONS. Signed by Judge Robert W. Schroeder, III on 7/20/2016. (sm, )

IN THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT
OF TEXAS TEXARKANA DIVISION
JUSTIN CONWAY
VS.
DIRECTOR, TDCJ-CID

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CIVIL ACTION NO.

5:14-CV-32

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Justin Conway, a prisoner confined at the Telford Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The Court ordered that this matter be referred to the Honorable Caroline Craven,
United States Magistrate Judge, for consideration pursuant to applicable laws and orders of
this Court. Before the Court is the Report and Recommendation of the Magistrate Judge, which
contains her findings, conclusions, and recommendation for the disposition of the petition.
Docket No. 13.
The Report and Recommendation, issued on May 2, 2016, recommended dismissing the
petition because Petitioner Justin Conway is barred by the statute of limitations. Id. at 2–4. The
Magistrate Judge also considered, alternatively, the merits of the petition and recommended
denying the petition because Petitioner did not demonstrate that his rights to due process were
violated, that the disciplinary hearing officer was biased, or that the evidence presented at the
disciplinary hearing was insufficient. Id. at 4–6. The Court received an acknowledgment of
receipt revealing that Petitioner received the Report and Recommendation on May 16, 2016.

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Docket No. 14.

No written objections were filed.

Having considered the Report and

Recommendation for plain error, along with the record, pleadings and all available evidence.
the Court ADOPTS the findings and conclusions of the Magistrate Judge as those of the Court.
Additionally, in this case, 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; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). If the
petition was denied on procedural grounds, the petitioner must show that jurists of reason would
find it debatable: (1) whether the petition 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 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).
The petitioner has not shown that any of the issues raised by his claims are subject to

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debate among jurists of reason, or that a procedural ruling was incorrect. In addition, the
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questions presented are not worthy of encouragement to proceed further. The petitioner has
failed to make a sufficient showing to merit the issuance of a certificate of appealability.
CONCLUSION
For the reasons stated above, 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
recommendation. A certificate of appealability will not be issued.
SIGNED this 20th day of July, 2016.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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