Johnson v. Director TDCJ

Filing 11

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING 3 REPORT AND RECOMMENDATIONS. Signed by District Judge Ron Clark on 1/11/18. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
RICHARD JAMES JOHNSON

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VS.

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DIRECTOR, TDJC-CID

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CIVIL ACTION NO. 9:17-CV-113

MEMORANDUM ORDER OVERRULING OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Richard James Johnson, a prisoner confined at the J.V. Allred Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The court referred this matter to the Honorable Keith 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 without prejudice as successive.
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 of United States Magistrate Judge. This requires a
de novo review of the objections in relation to the pleadings and applicable law. See FED. R. CIV.
P. 72(b). After careful consideration, the court finds petitioner’s objections lacking in merit.
Petitioner concedes he has already sought habeas relief concerning this conviction and
sentence. Section 2244(b)(3)(A) constitutes a bar to the this court’s jurisdiction to consider a
successive habeas petition unless a three-judge panel of the United States Court of Appeals for the
Fifth Circuit has first granted the petitioner permission to file such a petition. United States v. Key
205 F.3d 773, 774 (5th Cir. 2000) (per curiam); see also Crone v. Cockrell, 324 F.3d 833, 836 (5th
Cir. 2003) (section 2254 petitioner). The petition should be dismissed without prejudice to the right
of petitioner to seek permission from the Fifth Circuit to file a successive petition.

ORDER
Accordingly, the objections of petitioner are OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is
ADOPTED. A final judgment will be entered in this case in accordance with the Magistrate Judge’s
recommendations.
In addition, 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 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
In this case, petitioner has not shown that the issues of concern are subject to debate among
jurists of reason or worthy of encouragement to proceed further. As a result, a certificate of
appealability shall not issue in this matter.

So Ordered and Signed
Jan 11, 2018

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