Foster v. Director, TDCJ-CID

Filing 25

ORDER ADOPTING 23 REPORT AND RECOMMENDATIONS. 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. Therefore, Petitioner has failed to make a sufficient showing to merit the issuance of a certificate of appealability. Signed by District Judge Marcia A. Crone on 8/29/24. (ljw)

UNITED STATES DISTRICT COURT

DONALD FOSTER,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 9:21-CV-105

MEMORANDUM ORDER ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
Petitioner Donald Foster, 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 referred this matter to the Honorable Christine L. Stetson, United States
Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders
of this court. On July 29, 2024, the magistrate judge recommended denying the Petition. To date,
the parties have not filed objections to the report.
The court received and considered the Report and Recommendation of United States
Magistrate Judge pursuant to such referral, along with the record, pleadings and all available
evidence. After careful review, the court finds that the findings of fact and conclusions of law of
the United States Magistrate Judge are correct.
Accordingly, the findings of fact and conclusions of law of the magistrate judge are
correct, and the Report and Recommendation of United States Magistrate Judge (#23) is

ADOPTED. A final judgment will be entered in this case in accordance with the magistrate
judge’s recommendation.
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 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. Slack, 529 U.S. at 483-84. 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. Id. 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).

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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. Therefore, Petitioner has failed
to make a sufficient showing to merit the issuance of a certificate of appealability.
SIGNED at Beaumont, Texas, this 29th day of August, 2024.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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