Washington v. Stephens et al

Filing 14

ORDER OVERRULING OBJECTIONS AND 3 ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 3/6/17. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
J.P. WASHINGTON

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 9:16cv34

ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner J.P. Washington, an inmate confined at the Eastham Unit of 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 the petition be denied (docket entry no. 3).
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 pleadings. Petitioner filed
objections to the Report and Recommendation (docket entry no. 5).1 This requires a de novo review
of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b).
After careful consideration, the court concludes petitioner’s objections are without merit and
should be overruled. The punishment imposed in the contested disciplinary case did not affect the
fact or duration of confinement. Thus, the claims do not present grounds for federal habeas corpus

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Petitioner also filed objections to a subsequent report recommending dismissal for want of prosecution. However, the latter
report has been withdrawn. Accordingly, this order considers only the objections to the original report recommending
dismissal on the merits.

review. Accordingly, petitioner’s petition for writ of habeas corpus should be dismissed. The
dismissal, however, should be without prejudice to petitioner’s ability to pursue his claims
challenging the conditions of his confinement by filing a separate civil rights action.
Furthermore, 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 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); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that substantial
showing, the movant 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 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).
Here, 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 movant 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, petitioner has failed to make a sufficient

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showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of
appealability shall not be issued.
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. A final judgment will be entered in this case in accordance with the Magistrate Judge’s
recommendations.
So ORDERED and SIGNED this 6 day of March, 2017.

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Ron Clark, United States District Judge

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