Foreman v. Davis

Filing 14

ORDER ADOPTING 11 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 4/9/17. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
FREDDIE JAMES FOREMAN

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 9:16-CV-135

ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Freddie James Foreman, a prisoner confined at the Ellis 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 to allow
petitioner to exhaust state court remedies.
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. Petitioner filed a notice advising the court that he intends to return to the state courts to
exhaust available remedies.
In this case, 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 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, 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, 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, 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 (document no. 11) is ADOPTED. A final judgment will be

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

So ORDERED and SIGNED this 9th day of April, 2017.

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