Merimon v. Director TDCJ

Filing 11

ORDER ADOPTING 9 REPORT AND RECOMMENDATIONS. Signed by District Judge Ron Clark on 12/5/17. (ljw, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION JOSHUA KENNETH MERIMON § VS. § DIRECTOR, TDCJ-CID § 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. 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. 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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