Ziolkowski v. Dir, TDCJ

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS 17 and 18 as the opinion of this court. It is further ORDERED that Plaintiffs motion for summary judgment is DENIED. Further, it is ORDERED that the above-styled action is DISMISSED WITH PREJUDICE as time-barred. Finally, it is ORDERED that any and all motions by either party not previously ruled on are DENIED AS MOOT. Signed by District Judge Robert W. Schroeder, III on 09/20/19. (lfs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
CORY PAUL ZIOLKOWSKI,
Plaintiff,
v.
DIRECTOR, TDCJ-CID;
Defendant.

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§ CIVIL ACTION NO. 5:17-CV-00050-RWS-CMC
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ORDER

Petitioner, Cory Paul Ziolkowski, 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
Craven, United States Magistrate Judge, for consideration pursuant to 28 U.S.C. § 636(b)(1) and
(3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to
United States Magistrate Judges.
Petitioner filed the above-referenced petition for writ of habeas corpus contesting his
state court conviction (Docket No. 1). The Court entered a Show Cause Order (Docket No. 8),
and in its answer, Respondent asserted that the petition was time-barred (Docket No. 10).
Petitioner filed a motion for summary judgment (Docket No. 16). The Magistrate Judge issued
two separate Reports and Recommendations, first recommending the Petitioner’s motion for
summary judgment be dismissed (Docket No. 17) and second recommending the petition for
writ of habeas corpus be denied as time-barred (Docket No. 18).
Petitioner acknowledged receipt of both reports. (Docket Nos. 19, 20). The parties have
not filed objections to either report. Accordingly, any aggrieved party is not entitled to de novo
review by the District Judge of those findings, conclusion and recommendations, and except

upon grounds of plain error, the parties are barred from appellate review of the unobjected to
factual findings and legal conclusions accepted and adopted by the District Court. 28 U.S.C.
§ 636(b)(1)(C); Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415, 1430 (5th Cir. 1995) (en
banc).
Nonetheless, the Court has reviewed the pleadings in the cause and agrees with the
reports of the Magistrate Judge. See United States v. Raddatz, 447 U.S. 667, 683 (1980) (“[T]he
statute permits the district court to give to the magistrate’s proposed findings of fact and
recommendations ‘such weight as [their] merit commands and the sounds discretion of the
judge warrants, . . . ’ ”) (quoting Mathews v. Weber, 23 U.S. 261, 275 (1976)). There being no
grounds of plain error or manifest injustice, the Court hereby ADOPTS the Reports and
Recommendations of the Magistrate Judge (Docket Nos. 17, 18) as the findings and conclusions
of this Court. A Final Judgment will be entered in this case in accordance with the Magistrate
Judge’s recommendations.
Additionally, 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 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

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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.
It is therefore

.

ORDERED that the reports of the Magistrate Judge (Docket Nos. 17, 18) are

ADOPTED as the opinion of this court. It is further
ORDERED that Plaintiff’s motion for summary judgment is DENIED. Further, it is
ORDERED that the above-styled action is DISMISSED WITH PREJUDICE as timebarred. Finally, it is
ORDERED that any and all motions by either party not previously ruled on are
DENIED AS MOOT.
So ORDERED and SIGNED this 20th day of September, 2019.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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