Humphrey v. Director TDCJ

Filing 8

ORDER ADOPTING 6 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 1/3/14. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
BRISON KEITH HUMPHREY

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 9:13-CV-238

ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Brison Keith Humphrey, a prisoner confined at the Polunsky Lewis 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 ordered that this matter be referred to the Honorable Keith F. Giblin, United States
Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of
this court. The Magistrate Judge recommends dismissing the petition without prejudice for want of
prosecution.
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 the pleadings. No
objections to the Report and Recommendation of United States Magistrate Judge were filed by the
parties.
In this case, 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; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.
2009). If the petition was denied on procedural grounds, the petitioner must show that jurists of
reason would find it debatable: (1) whether the petition raises a valid claim of the denial of a
constitutional right, and (2) whether the district court was correct in its procedural ruling. Slack, 529
U.S. at 484; Elizalde, 362 F.3d at 328. 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. 2000).
Here, the petitioner has not shown that any of the issues raised by his claims are subject to
debate among jurists of reason, or that a procedural ruling was incorrect. In addition, the questions
presented are not worthy of encouragement to proceed further. Petitioner has failed to make a
sufficient showing to merit the issuance of a certificate of appealability.
ORDER
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

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in accordance with the Magistrate Judge’s recommendation. A certificate of appealability will not
be issued.

So ORDERED and SIGNED this 3 day of January, 2014.

___________________________________
Ron Clark, United States District Judge

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