Wiley v. Dir TDCJ

Filing 8

ORDER ADOPTING 6 REPORT AND RECOMMENDATIONS and petition is dismissed without prejudice. Signed by District Judge Robert W. Schroeder, III on 3/12/2018. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
CHARLES ROBERT WILEY,

v.
TEXAS BOARD
PAROLES,

OF

PARDONS

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CIVIL ACTION NO. 5:17-CV-00088-RWS

ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Petitioner Charles Robert Wiley, a former prisoner, proceeding pro se, filed this petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court ordered that this matter be
referred to the 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.
On November 2, 2017, the Magistrate Judge recommended dismissing this petition
without prejudice. Docket No. 6. At that time, a copy of the Report and Recommendation was
mailed to the petitioner at his last known address, and Petitioner did not acknowledge receipt of
the Report and Recommendation or file objections.

Because it was unclear whether the

petitioner received the Report and Recommendation, a second copy was mailed to him on
January 24, 2018, which Petitioner acknowledged the receipt of. Docket No. 7. The undated
acknowledgment was received by the Court on February 12, 2018. Id.
Petitioner did not file objections to the Report and Recommendation; therefore, this Court
reviews the Report and Recommendation for clear error. Rodriguez v. Bowen, 857 F.2d 275,

276-77 (5th Cir. 1988). Upon review of the Magistrate Judge’s Report, the Court agrees with the
Magistrate Judge that the instant action should be dismissed without prejudice because Petitioner
is not incarcerated, he did not seek early release from prison, and Petitioner’s claims are not
cognizable in a federal habeas petition.

Accordingly, the Magistrate Judge’s Report is

ADOPTED as the opinion of the Court and this petition is 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. 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 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, 280–281 (5th Cir.), cert.

denied, 531 U.S. 849 (2000).
In this case, Petitioner has not shown that the issues raised by his claims are subject to
debate among jurists of reason, and 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 appealability will not be
issued.

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So ORDERED and SIGNED this 12th day of March, 2018.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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