Wiley v. Texas Board of Pardons & Paroles

Filing 5

MEMORANDUM ORDER ADOPTING 4 REPORT AND RECOMMENDATIONS. Signed by District Judge Robert W. Schroeder, III on 12/4/2017. (sm, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION CHARLES ROBERT WILEY V. TEX. BD. OF PARDONS AND PAROLES § § § § § CIVIL ACTION NO. 5:17cv116 MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE Charles Robert Wiley, formerly an inmate confined within the Texas Department of Criminal of Criminal Justice, Correctional Institutions Division, 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. Petitioner is challenging the revocation of his release on parole. The Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge recommending the petition be dismissed without prejudice as repetitious. Docket No. 4 at 1. The recommendation was based on the Magistrate Judge’s determination that Petitioner has another petition challenging the revocation of his release on parole pending before this Court. Id. The Report and Recommendation was submitted on October 2, 2017. Id. The time for filing objections has elapsed without Petitioner filing any objections to the Report and Recommendation. As no objections were filed, this Court reviews the Magistrate Judge’s findings of fact and conclusions of law for plain error. Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988). The Court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record and pleadings. Having considered the record and the Report, the Court agrees with the Magistrate Judge that the current petition should be dismissed because it is repetitive of a prior petition. Accordingly, finding no clear 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 the Court. It is accordingly ORDERED that this petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE as repetitious. 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, 280-81 (2000). In this case, Petitioner has not shown that the issue of whether the current petition is repetitious of a prior petition is 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. SIGNED this 4th day of December, 2017. ____________________________________ ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE Page 2 of 2

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