Havard v. Thaler
ORDER ADOPTING 7 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 2/13/13. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BENNY DWAYNE HAVARD
CIVIL ACTION NO. 9:12cv194
ORDER ADOPTING THE MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION
Petitioner Benny Dwayne Havard, an inmate confined in the Texas Department of Criminal
Justice, Correctional Institutions Division, proceeding pro se, brought this petition for writ of habeas
corpus 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 dismissed as barred by limitations.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record and pleadings. No objections
to the Report and Recommendation of United States Magistrate Judge were filed by the parties.
Furthermore, 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. 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).
Here, the 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, the 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.
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.
So ORDERED and SIGNED on February _____, 2013.
United States District Judge
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