Waller v. Director of TDCJ
MEMORANDUM ORDER ADOPTING 14 REPORT AND RECOMMENDATIONS. Signed by District Judge Rodney Gilstrap on 11/20/2017. (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
DAVID GENTRY WALLER
CIVIL ACTION NO. 5:16cv146
MEMORANDUM ORDER ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
David Gentry Waller, an inmate confined within the Texas Department of Criminal
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 referred this matter to the Honorable
Caroline M. Craven, United States Magistrate Judge, for consideration pursuant to 28 U.S.C. § 636.
Petitioner is challenging a conviction for aggravated assault with a deadly weapon. The
Respondent filed a motion asking that the petition be dismissed as barred by the applicable statute
of limations. The Magistrate Judge has submitted a Report and Recommendation of United States
Magistrate Judge recommending the motion be granted. Docket No. 14 at 2. The recommendation
was based on the Magistrate Judge’s determination that Petitioner did not filed his application within
one year of the date on which his conviction became final.
Petitioner acknowledge receipt of the Report and Recommendation on October 27, 2017.
The time for filing objections has elapsed without Petitioner filing any objections to the Report and
Recommendation. As no objections were filed, this Court reviews the Magistrate Judge’s findings
of fact and conclusions of law for plain error. Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. Having considered the record and the Report,
the Court agrees with the Magistrate Judge that the current petition should be dismissed because it
is barred by the applicable statute of limitations. Accordingly, finding no clear 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 accordingly
ORDERED that the Respondent’s motion to dismiss is GRANTED and this petition for writ
of habeas corpus is DISMISSED as barred by the applicable statute of limtations.
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 making this determination. See
Miller v. Johnson, 200 F.3d 274, 280-81 (2000).
In this case, Petitioner has not shown that the issue of whether the current petition is barred
by the applicable statute of limitations is 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 19th day of December, 2011.
So ORDERED and SIGNED this 20th day of November, 2017.
UNITED STATES DISTRICT JUDGE
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