Merimon v. Director TDCJ
ORDER ADOPTING 9 REPORT AND RECOMMENDATIONS. Signed by District Judge Ron Clark on 12/5/17. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
JOSHUA KENNETH MERIMON
CIVIL ACTION NO. 9:16cv169
ORDER ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Joshua Kenneth Merimon, 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
Zack Hawthorn, United States Magistrate Judge, for consideration pursuant to 28 U.S.C. § 636.
The respondent filed a motion asking that the petition be dismissed for failure to exhaust
state remedies. The Magistrate Judge has submitted a Report and Recommendation of United States
Magistrate Judge recommending the motion be granted.
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.
Accordingly, the findings of fact and conclusions of law of the Magistrate Judge are correct
and the report of the Magistrate Judge is ADOPTED. The respondent’s motion to dismiss is
GRANTED. A final judgment will be entered dismissing 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 he exhausted his state
remedies 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 5, 2017
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