Wilson v. Director TDCJ

Filing 23

MEMORANDUM ORDER ADOPTING 19 REPORT AND RECOMMENDATIONS. Signed by Judge Rodney Gilstrap on 8/1/2017. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
WILLIE CLINTON WILSON

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 5:14-CV-160

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Willie Clinton Wilson, an inmate confined at the Telford Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma
pauperis, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The Court referred this matter to the Honorable Caroline Craven, United States Magistrate
Judge, at Texarkana, Texas, for consideration pursuant to applicable laws and orders of this Court.
The Magistrate Judge recommends the petition be dismissed for lack of jurisdiction as successive
or, alternatively, with prejudice as barred by the applicable statute of limitations.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, and pleadings. No objections
to the Report and Recommendation of United States Magistrate Judge have been filed to date.1
Accordingly, 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.

1

The Report and Recommendation was filed on March 28, 2017 (docket entry no. 19). A copy of the Report
and Recommendation was returned as undeliverable on April 11, 2017 (docket entry no. 20). Petitioner notified the
Court of an address change on April 13, 2017, and another copy of the Report and Recommendation was sent on April
13, 2017 to the new address. No acknowledgment card was returned and a third copy of the Report and
Recommendation was sent on June 6, 2017. Petitioner received a copy of the Report and Recommendation on June 12,
2017 (docket entry no. 22).

Furthermore, the Court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying post-conviction collateral relief may not proceed
unless a judge issues a certificate of appealability. See 28 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 establish
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).
In this case, petitioner has not shown that any of the issues would be subject to debate among
jurists of reason. The questions presented are not worthy of encouragement to proceed further.
Therefore, the petitioner has failed to make a sufficient showing to merit the issuance of certificate
of appealability. Accordingly, a certificate of appealability will not be issued.

So Ordered this
Aug 1, 2017

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