Freeman v. Director, TDCJ

Filing 5

MEMORANDUM ORDER ADOPTING 2 REPORT AND RECOMMENDATIONS. Signed by District Judge Robert W. Schroeder, III on 11/29/2017. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
RUSSELL VERNON FREEMAN

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V.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO.

5:17-CV-162

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Russell Vernon Freeman, a prisoner currently confined at the Estes 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. Docket No. 1.
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 for writ of habeas
corpus without prejudice because it is a successive petition for writ of habeas corpus, filed without
authorization from the United States Court of Appeals for the Fifth Circuit. Docket No. 2.
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. No objections to the Report and Recommendation of United States Magistrate Judge
were filed by the parties.
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
presented are not worthy of encouragement to proceed further. Therefore, the petitioner has failed
to make a sufficient showing to merit the issuance of a certificate of appealability.
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.
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So ORDERED and SIGNED this 29th day of November, 2017.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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