Dancer v. State Of Texas

Filing 5

ORDER ADOPTING 2 REPORT AND RECOMMENDATIONS. Signed by Judge Robert W. Schroeder, III on 3/6/2017. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
LATONYA DANCER,
Plaintiff,
v.
DIRECTOR, TDCJ-CID,
Defendant.

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CIVIL ACTION NO. 5:16-CV-00186-RWS

ORDER ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner LaTonya Dancer, an inmate confined at the Woodman State Jail, 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. The Magistrate Judge has submitted a Report and Recommendation
of United States Magistrate Judge recommending the petition be dismissed without prejudice for
failure to exhaust state court remedies. Docket No. 2 at 2.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings.

No objections to the Report and

Recommendation have been filed. This Court agrees with the Magistrate Judge that, as Petitioner
stated, she had not presented her claims to the Texas Court of Criminal Appeals, and she did not
exhaust her state court remedies before filing her federal petition. Id. 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 this Court. It is hereby

ORDERED that the petitioners claims are DISMISSED WITHOUT 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. 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 she would prevail on the merits. Rather, she 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
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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 she exhausted her state court
remedies is subject to debate among jurists of reason, and the questions presented by the Petition
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 6th day of March, 2017.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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