Kinslow v. Director

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 24 . The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is therefore DENIED. Signed by District Judge Robert W. Schroeder, III on 12/15/20. (lfs, )

Case 5:17-cv-00171-RWS-CMC Document 25 Filed 12/15/20 Page 1 of 3 PageID #: 878

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
ROBERT SHAYNE KINSLOW,
v.

DIRECTOR, TDCJ-CID,

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CIVIL ACTION NO. 5:17-CV-00171-RWS-CMC

ORDER
Petitioner Robert Shayne Kinslow, a prisoner currently confined at the Michael 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 referred this matter to the Honorable Caroline Craven, United States Magistrate
Judge, for consideration pursuant to applicable laws and orders of this Court. On November 4,
2020, the Magistrate Judge issued a Report and Recommendation recommending denial of the
petition for writ of habeas corpus (Docket No. 24).
The Court has received and considered the Report and Recommendation of the Magistrate
Judge filed pursuant to such order, along with the record, and pleadings. No objections to the
Report and Recommendation of United States Magistrate Judge have been filed by the parties.
Because no objections to the Magistrate Judge’s Report have been filed, neither party is entitled
to de novo review by the District Judge of those findings, conclusions and recommendations, and
except upon grounds of plain error, they 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 Services Automobile Assoc., 79 F.3d 1415, 1430 (5th Cir.
1996) (en banc).

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Nonetheless, the Court has reviewed the motion and the Magistrate Judge’s report and
agrees with the report. 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 sound discretion of the judge warrants.’ ”) (quoting
Mathews v. Weber, 23 U.S. 261, 275 (1976)). Accordingly, the Court hereby ADOPTS the Report
and Recommendation of the United States Magistrate Judge as the findings and conclusions of this
Court. The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is therefore DENIED.
Furthermore, 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 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

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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.
SIGNED this 15th day of December, 2020.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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