Turner v. Director TDCJ ID
ORDER ADOPTING 17 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 7/14/14. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
JOHN WESTLEY TURNER
CIVIL ACTION NO. 9:11-CV-160
ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner, John Westley Turner, an inmate confined at the Wayne Scott 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 referred this matter to the Honorable Keith Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends the petition be denied.
The court has received and considered the Report and Recommendation of United States
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 were filed by
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 recommendations.
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
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.
So ORDERED and SIGNED this 14 day of July, 2014.
Ron Clark, United States District Judge
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