Cartwright v. Director TDCJ

Filing 7

ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S 4 REPORT AND RECOMMENDATION. Signed by Judge Ron Clark on 9/27/17. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
MARCUS BRANDON CARTWRIGHT

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 9:17cv21

ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Marcus Brandon Cartwright, an inmate confined in the Texas Department of
Criminal Justice, Correctional Institutions Division, proceeding pro se, brought this petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254.
The court referred this matter 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 the petition be dismissed as barred by limitations.
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 pleadings. Petitioner filed
objections to the Report and Recommendation. This requires a de novo review of the objections in
relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b).
After careful consideration, the court concludes petitioner’s objections should be overruled.
Petitioner’s petition is barred by the applicable one-year statute of limitations. Accordingly, the
petition should be dismissed.
Furthermore, 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 the movant 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, the movant 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. Any doubt regarding whether to grant a certificate
of appealability is resolved in favor of the movant, 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.), cert. denied,
531 U.S. 849 (2000).
Here, petitioner has not shown that any of the issues raised by his claims are subject to debate
among jurists of reason. The factual and legal questions advanced by the movant are not novel and
have been consistently resolved adversely to his position. In addition, the questions presented are
not worthy of encouragement to proceed further. Therefore, petitioner has failed to make a sufficient
showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of
appealability shall not be issued.
ORDER
Accordingly, petitioner’s objections are OVERRULED.

The findings of fact and

conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is

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ADOPTED. A final judgment will be entered in this case in accordance with the Magistrate Judge’s
recommendations.

So ORDERED and SIGNED this 27 day of September, 2017.

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Ron Clark, United States District Judge

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