Qualls v. Dir of TDCJ
ORDER ADOPTING 12 REPORT AND RECOMMENDATIONS and thereby ORDERED that Mr. Qualls' petition is DENIED. Signed by District Judge Robert W. Schroeder, III on 1/9/2018. (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
J WILSON, WARDEN; AND DIR OF
CIVIL ACTION NO. 5:16-CV-00194-RWS
ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Petitioner Alex Qualls, an inmate confined at the Telford Unit, 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 this petition for writ of habeas corpus should be dismissed
without prejudice for want of prosecution.
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. Petitioner acknowledged receipt of the Report and Recommendation on July 19, 2017.
No objections to the Report and Recommendation of United States Magistrate Judge were filed by
The Court agrees with the Magistrate Judge that Petitioner has not complied with the
Court’s previous orders to pay the filing fee for this petition, and has, therefore, failed to
diligently prosecute this case pursuant to Fed. R. Civ. P. 41(b).
Accordingly, finding no plain error in the findings of fact and conclusions of law of the
Magistrate Judge, the Court ADOPTS the Report and Recommendation of the Magistrate Judge
(Docket No. 12) as the findings and conclusions of this Court. It is thereby ORDERED that Mr.
Qualls’ petition is DENIED.
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. Therefore, Petitioner has failed to make a sufficient
showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of
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appealability shall not be issued.
A final judgment will be entered in this case in accordance with the above.
SIGNED this 9th day of January, 2018.
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE
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