Dillon v. Director, TDCJ-CID

Filing 5

ORDER ADOPTING 3 Report and Recommendations. Signed by Judge Ron Clark on 6/2/17. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
DANNY LANE DILLON

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 9:17cv69

ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Petitioner Danny Lane Dillon, an inmate confined within the Texas Department of Criminal
Justice, Correctional Institutions Division, 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
concerning this matter. The Magistrate Judge recommends the petition be dismissed without
prejudice as successive.
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 that the 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 that must be met in order
to receive 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
is not requited to demonstrate that he would prevail on the merits. Rather, he need only 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 in the petition are worthy of encouragement to
proceed further. See Slack, 529 U.S. at 483-84. If the petition was dismissed on procedural grounds,
the petitioner must show that jurists of reason would find it debatable: (1) whether the petition raises
a valid claim of the denial of a constitutional right, and (2) whether the district court was correct in
its procedural ruling. Slack, 529 U.S. at 484; Elizalde, 362 F.3d at 328. 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 successive
is subject to debate among jurists of reason. The factual and legal questions raised by petitioner have
been consistently resolved adversely to his position 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
Jun 2, 2017