Mays v. Director, TDCJ
Filing
44
MEMORANDUM ORDER ADOPTING 38 REPORT AND RECOMMENDATIONS. Petitioner's objections are OVERRULED. 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 themagistrate judge's recommendation. Signed by Judge Marcia A. Crone on 12/18/13. (mll, )
UNITED STATES DISTRICT COURT
RANDALL WAYNE MAYS,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.
EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 6:11-CV-135
MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Randall Wayne Mays, a death row inmate confined within the Texas Department
of Criminal Justice, Correctional Institutions Division, filed this petition for a writ of habeas
corpus challenging his conviction pursuant to 28 U.S.C. § 2254.
The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The magistrate judge recommends that the petition be denied.
The court has received and considered the Second Report and Recommendation of United
States Magistrate Judge, along with the record, pleadings, and all available evidence. Petitioner
filed objections to the magistrate judge’s Second Report and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes
that Petitioner’s objections are without merit. With respect to the supplemental petition and
objections concerning ground for relief number five, Petitioner has failed to show either that he
is mentally retarded or suffers from an intellectual disability that precludes him from execution
under current law, or a substantial claim of ineffective assistance of trial counsel in order to
overcome the procedural default of this issue, as required by Trevino v. Thaler, 133 S. Ct. 1911,
1921 (2013). With respect to his remaining claims, Petitioner has failed to show either that the
state court adjudication was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States or that the state
court adjudication resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
Accordingly, Petitioner’s grounds for relief should be denied.
Furthermore, 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, a 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. 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.), cert. denied, 531 U.S. 849 (2000).
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Here, Petitioner has not shown that any of the issues raised by his claims are subject to
debate among jurists of reason. The factual and legal questions advanced by the petitioner are not
novel and have been consistently resolved adversely to his position. In addition, 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 shall not be issued.
ORDER
For the reasons stated above, Petitioner’s objections are OVERRULED. 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.
.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 18th day of December, 2013.
________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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