Berber v. Thaler
MEMORANDUM ORDER ADOPTING 43 REPORT AND RECOMMENDATIONS. Signed by District Judge Thad Heartfield on 1/9/18. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MICHAEL ANGELO BERBER
CIVIL ACTION NO. 9:13-CV-80
MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Petitioner, Michael Angelo Berber, a state prisoner confined at the Darrington Unit with
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 Zack Hawthorn, 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 dismissed with prejudice as time-barred.
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 have been filed
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 movant 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 movant 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 movant 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 movant, 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, movant has not shown that the issue would be subject to debate among jurists
of reason. The questions presented are not worthy of encouragement to proceed further.
Therefore, the movant 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 the 9 day of January, 2018.
United States District Judge
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