Walker v. Director TDCJ

Filing 13

ORDER adopting the magistrate judge's 11 Report and Recommendation. A certificate of appealability will not be issued. Signed by District Judge Ron Clark on 12/7/2017. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
MICHAEL WALKER

§

VS.

§

DIRECTOR, TDCJ-CID

§

CIVIL ACTION NO. 9:16cv153

ORDER ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Michael Walker, proceeding pro se, filed this 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, for consideration pursuant to 28 U.S.C. § 636. The
Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge
recommending the petition be denied.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings.

No objections to the Report and

Recommendation of United States Magistrate Judge have been filed.
ORDER
Accordingly, 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 denying the
petition.
Furthermore, the Court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying post-conviction collateral 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 (2000); Elizalde v. Dretke,
362 F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, the petitioner need not establish
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.
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 (2000).
In this case, petitioner has not shown that the issue of whether his petition is meritorious is
subject to debate among jurists of reason. The questions presented are not worthy of encouragement
to proceed further. The petitioner has therefore failed to make a sufficient showing to merit the
issuance of a certificate of appealability. Accordingly, a certificate of appealability will not be
issued.

So Ordered and Signed
Dec 7, 2017