Albert v. Director TDCJ

Filing 7

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. Signed by Judge Michael H. Schneider on 6/2/16. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
ALBERT CHARLES HALEY

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 9:16cv51

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Albert Charles Haley, an inmate confined at the Stiles 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 for writ of habeas corpus should be dismissed as
barred by limitations.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, pleadings and all available
evidence. Petitioner filed a notice with the Court which, liberally interpreted, is construed as
objections to the magistrate judge’s Report and Recommendation. 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 should be overruled.
“[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt
filing.” Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999).
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
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not worthy of encouragement to proceed further. Therefore, petitioner has failed to make a sufficient
showing to merit the issuance of a certificate of appealability. Thus, a certificate of appealability
shall not be issued.
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.
SIGNED this 2nd day of June, 2016.

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE
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