Carpenter v. 420th District Court
ORDER ADOPTING 10 REPORT AND RECOMMENDATIONS. Signed by Judge Michael H. Schneider on 4/12/16. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
JACKIE L. CARPENTER
CIVIL ACTION NO. 9:15cv129
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Jackie L. Carpenter, an inmate confined within 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 previously referred this matter to the Honorable Keith F. Giblin, United States
Magistrate Judge, at Beaumont, Texas, for consideration pursuant to 28 U.S.C. § 636 and
applicable orders of this Court. The Magistrate Judge has submitted a Report and
Recommendation of United States Magistrate Judge concerning this matter. The Magistrate
Judge recommends that a motion to dismiss filed by the respondent be granted and this petitioner
dismissed as barred by the applicable statute of limitations.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. No objections were filed to the Report
Accordingly, 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. The
motion to dismiss is GRANTED. A final judgment shall be entered denying the petition 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 in this matter. An appeal from a judgment denying federal habeas 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; 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
he raised 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.
In this case, the petitioner has not shown that the issue of whether his petition is barred by
limitations is subject to debate among jurists of reason. The factual and legal issues raised by
petitioner have been consistently resolved adversely to his position and the questions presented
are not worth of encouragement to proceed further. As a result, a certificate of appealability shall
not issue in this matter.
SIGNED this 12th day of April, 2016.
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE
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