Johnson v. Director TDCJ-CID
Filing
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ORDER accepting the magistrate judge's 18 Report and Recommendation. Signed by District Judge Ron Clark on 6/12/2021. (bjc, )
**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
ELLOYD JOHNSON
§
VS.
§
DIRECTOR, TDCJ-CID
§
CIVIL ACTION NO. 9:18-CV-85
ORDER ACCEPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Elloyd Johnson, a prisoner confined at the Polunsky 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 ordered that this matter be referred to the Honorable Zack Hawthorn, United States
Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this
Court. The Magistrate Judge recommends denying the petition.
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 the pleadings. No objections
to the Report and Recommendation of United States Magistrate Judge were filed by the parties.
In this case, the 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
**NOT FOR PRINTED PUBLICATION**
law, 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); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that substantial showing, the
petitioner 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; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). If the petition was denied
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 is 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).
Here, the petitioner has not shown that any of the issues raised by his claims are subject to
debate among jurists of reason, or that a procedural ruling was incorrect. In addition, the questions
presented are not worthy of encouragement to proceed further. The petitioner has failed to make a
sufficient showing to merit the issuance of a certificate of appealability.
ORDER
The findings of fact and conclusions of law of the Magistrate Judge are correct, and the report
of the Magistrate Judge (document no. 18) is ACCEPTED. A final judgment will be entered in this
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**NOT FOR PRINTED PUBLICATION**
case in accordance with the Magistrate Judge’s recommendation. A certificate of appealability will not
be issued.
So ORDERED and SIGNED, Jun 12, 2021.
____________________
Ron Clark
Senior Judge
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