Miller v. Director TDCJ
Filing
7
ORDER OVERRULING OBJECTIONS AND ADOPTING 3 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 5/22/14. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
TERRY PRESON MILLER
§
VS.
§
DIRECTOR, TDCJ-CID
§
CIVIL ACTION NO. 9:14cv29
MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Terry Preston Miller, an inmate confined at the Hughes Unit of the Texas Department of
Criminal Justice, Correctional Institutions Division, proceeding pro se, filed the above-styled
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, for consideration pursuant to 28 U.S.C. § 636. The Magistrate Judge has submitted a
Report and Recommendation of United States Magistrate Judge concerning this matter. The
Magistrate Judge recommends the petition be dismissed without prejudice as successive.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report
and Recommendation.
The court has conducted a de novo review of the objections. After careful consideration,
the court is of the opinion the objections are without merit. Petitioner is challenging a conviction
for aggravated rape. In his objections, petitioner states he received ineffective assistance of
counsel in connection with the conviction. However, he makes no attempt to explain why the
Magistrate Judge erred in concluding that his petition is successive.
ORDER
Accordingly, 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 as the opinion of the court. A final judgment shall be entered in accordance with the
recommendation of the Magistrate Judge.
In addition, the court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying federal habeas relief may not proceed unless a
judge issues a certificate of appealability. See 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
demonstrate 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. If the petition was dismissed 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 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. 2000).
In this case, 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. The factual
and legal questions raised by petitioner have been consistently resolved adversely to his position
and the questions presented are not worthy of encouragement to proceed further. As a result, a
certificate of appealability shall not issue in this matter.
So ORDERED and SIGNED this 22 day of May, 2014.
___________________________________
Ron Clark, United States District Judge
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