Hayes v. LaSalle Correctional Facility

Filing 13

MEMORANDUM ORDER ADOPTING 10 REPORT AND RECOMMENDATIONS. Signed by Judge Robert W. Schroeder, III on 7/17/2017. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
RON WESLEY HAYES

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VS.

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LASALLE CORRECTIONAL FACILITY

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CIVIL ACTION NO. 5:16cv164

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION
Petitioner Ron Wesley Hayes, an inmate confined at the Bowie County Correctional Center
in Texarkana, Texas, proceeding pro se, brought 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, at Texarkana, Texas, for consideration pursuant to applicable laws and
orders of this Court. The Magistrate Judge recommends the petition should be dismissed based on
Petitioner’s failure to exhaust state habeas remedies.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record, pleadings and all available
evidence. No objections to the Report and Recommendation of United States Magistrate Judge were
filed by the parties.
The Magistrate Judge’s Report and Recommendation was mailed to the address Petitioner
provided the Court but was returned as undeliverable because Petitioner is no longer there. Docket
No. 12. Petitioner is a pro se litigant, and under the Local Rules of the Eastern District of Texas, pro
se litigants must provide the Court with a physical address and are “responsible for keeping the clerk
advised in writing of the current physical address.” Local Rule CV-11(d). Petitioner was advised
of this rule in Order Regarding In Forma Pauperis Status. Docket. No. 2. The Order stated “Petitioner
shall notify the Court of any change of address by filing a written notice of change of address with
the Clerk. Failure to file such a notice may result in the case being dismissed for want of

prosecution.” To date, Petitioner has not updated his address with the Court or filed objections to
the Report.
Because Petitioner did not file objections to the Report and Recommendation, this Court
reviews the Magistrate Judge’s findings of fact and conclusions of law for clear error. Rodriguez
v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988). This Court agrees with the Magistrate Judge that
the petition should be dismissed for failing to exhaust state habeas remedies.
Additionally, the Court finds that Petitioner is not entitled to 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. 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.),
cert. denied, 531 U.S. 849 (2000).
Here, Petitioner has not shown that any of the issues raised by his claims are subject to debate
among jurists of reason. The factual and legal questions advanced by Petitioner are not novel and
have been consistently resolved adversely to his position. In addition, the questions presented are
not worthy of encouragement to proceed further. Thus, Petitioner has failed to make a sufficient
showing to merit the issuance of a certificate of appealability.

Therefore, a certificate of

appealability shall not be issued. Accordingly, the Court hereby ADOPTS the Report of the United
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States Magistrate Judge as that of this Court. It is hereby ORDERED that this petition is
DISMISSED without prejudice.
SIGNED this 17th day of July, 2017.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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