Marbles v. Director TDCJ

Filing 5

ORDER ADOPTING 3 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 3/31/17. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
ALFRED C. MARBLES

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 9:17cv19

ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Alfred C. Marbles, proceeding pro se, filed the above-styled 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, for consideration pursuant to 28 U.S.C. § 636 and
applicable orders of this court. The Magistrate Judge has submitted a Report and Recommendation
of United States Magistrate Judge recommending this petition be dismissed without prejudice as
moot.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. No objections were filed to the Report and
Recommendation.
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 as the opinion of the court. A final judgment
shall be entered in accordance with the recommendation of the Magistrate Judge.
In addition, the court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying federal habeas relief may not proceed unless a
judge issues a certificate of appealability. See 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 demonstrate

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 (5th Cir. 2000).
In this case, the petitioner has not shown that the issue of whether his petition is moot is
subject to debate among jurists of reason. The relevant factual and legal questions have been
consistently resolved adversely to petitioner and the questions presented are not worthy of
encouragement to proceed further. As a result, a certificate of appealability shall not issue in this
matter.

So ORDERED and SIGNED this 31st day of March, 2017.