Johnson v. Stephens Director TDCJ-CID

Filing 20

ORDER ADOPTING 18 REPORT AND RECOMMENDATIONS ORDERING that Petitioner's claims are Denied With Prejudice. Signed by Judge Robert W. Schroeder, III on 9/18/2017. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
MICHAEL EARL JOHNSON,
Plaintiff,
v.
WILLIAM STEPHENS, DIRECTOR TDCJCID,

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CIVIL ACTION NO. 5:15-CV-00029-RWS

Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Petitioner Michael Earl Johnson, proceeding pro se, filed this petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a conviction for aggravated robbery
with a deadly weapon. The Court referred this matter to the Honorable Caroline M. Craven,
United States Magistrate Judge, for consideration pursuant to 28 U.S.C. § 636. The Magistrate
Judge has submitted a Report and Recommendation recommending the petition be denied.
Docket No. 18 at 25.
The Court has received and considered the Report and Recommendation along with the
record and pleadings. No objections have been filed. The Court agrees with the Magistrate
Judge’s conclusion that the Petitioner’s arguments regarding ineffective assistance of counsel
and in-court identification do not meet the standard for habeas relief. Accordingly, finding no
plain error in the findings of fact and conclusions of law of the Magistrate Judge, this Court
adopts the Magistrate Judge’s findings and conclusions as those of the Court. It is hereby
ORDERED that Petitioner’s claims are DENIED WITH PREJUDICE.

Additionally, the Court finds that 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
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making this determination. See Miller v. Johnson, 200 F.3d 274, 280–281 (5th Cir.), cert.
denied, 531 U.S. 849 (2000).
In this case, Petitioner has not shown that the issues raised by his claims are subject to
debate among jurists of reason, and the questions presented are not worthy of encouragement to
proceed further. Therefore, Petitioner has failed to make a sufficient showing to merit the
issuance of a certificate of appealability. Accordingly, a certificate of appealability will not be
issued.
SIGNED this 18th day of September, 2017.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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