Richardson v. FCI Texarkana

Filing 13

MEMORANDUM ORDER ADOPTING 11 REPORT AND RECOMMENDATIONS Signed by Judge Robert W. Schroeder, III on 10/10/2017. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
JUSTIN RICHARDSON

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VS.

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WARDEN, FCI TEXARKAN

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CIVIL ACTION NO. 5:16-CV-170

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Justin Richardson, an inmate confined at FCI Texarkana, proceeding pro se, filed
this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
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 petitioner’s motion to voluntarily dismiss the petition be granted.
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. The petitioner properly filed to
withdraw his Petition for Writ of Habeas Corpus. Docket No. 10. A final judgment will be
entered in this case in accordance with the Magistrate Judge’s recommendations.
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
Petitioner received a copy of the Report and Recommendation on August 31, 2017. Docket No. 12.

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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.
SIGNED this 10th day of October, 2017.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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