Critchley v. Director TDCJ-CID

Filing 17

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS for 15 Report and Recommendations. Signed by District Judge Rodney Gilstrap on 01/09/19. (lfs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
RICK A. CRITCHLEY

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO.

5:17-CV-148

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Rick A. Critchley, a prisoner confined at the Telford Unit of the Texas Department
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 ordered that this matter be referred to the Honorable Caroline Craven, United
States Magistrate Judge, at Texarkana, Texas, for consideration pursuant to applicable laws and
orders of this Court. The magistrate judge recommends dismissing the petition as moot.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, pleadings and all available
evidence. The petitioner’s copy of the Report and Recommendation was returned to the Court on
November 13, 2018, with a notation that the petitioner has been released from custody. The
petitioner has not provided the Court with his current address.
No objections to the Report and Recommendation of United States Magistrate Judge were
filed by the parties. Thus, any aggrieved party is barred from de novo review by the district court
of the proposed findings and recommendations of the Magistrate Judge. There being no grounds of

plain error or manifest injustice, the Court hereby adopts the Report and Recommendation of the
United States Magistrate Judge as the findings and conclusions of this Court.
Additionally, in this case, the petitioner is not entitled to the issuance of 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; Avila v. Quarterman, 560 F.3d
299, 304 (5th Cir. 2009). If the petition was denied on procedural grounds, the petitioner must show
that jurists of reason would find it debatable: (1) whether the petition raises a valid claim of the
denial of a constitutional right, and (2) whether the district court was correct in its procedural ruling.
Slack, 529 U.S. at 484; Elizalde, 362 F.3d at 328. 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.
2000).
The petitioner has not shown that any of the issues raised by his claims are subject to debate
among jurists of reason, or that a procedural ruling was incorrect. In addition, the questions
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presented are not worthy of encouragement to proceed further. The petitioner has failed to make a

.
sufficient showing to merit the issuance of a certificate of appealability.
ORDER
Accordingly, the findings of fact and conclusions of law of the magistrate judge are correct,
and the report of the magistrate judge is ADOPTED. A final judgment will be entered in this case
in accordance with the magistrate judge’s recommendation. A certificate of appealability will not
be issued.

SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 9th day of January, 2019.

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RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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