Biffel v. Nathaniel Quarterman, Director TDCJ-CID

Filing 25

ORDER ADOPTING 23 Findings and Recommendations of Magistrate Judge AND ORDER DENYING CERTIFICATE OF APPEALABILITY: petition for writ of habeas corpus under 28 U.S.C. § 2254 is DENIED.......certificate of appealability should not issue for the reasons stated in the December 4, 2009, Findings, Conclusions, and Recommendation of the United States Magistrate Judge. [see order for specifics] (Ordered by Judge Terry R Means on 2/18/2010) (cxb) Modified on 2/18/2010/Dist-AC/tle 2/18. (cxb).

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION BOBBY LEE BIFFEL, VS. RICK THALER, Director, T.D.C.J. Correctional Institutions Div. § § § § § § §

CIVIL ACTION NO.4:09-CV-067-Y

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS AND ORDER DENYING CERTIFICATE OF APPEALABILITY In this action brought by petitioner Bobby Lee Biffel under 28 U.S.C. § 2254, the Court has made an independent review of the following matters in the above-styled and numbered cause: 1. 2. The pleadings and record; The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on December 4, 2009; and The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on December 28, 2009.

3.

The Court, after de novo review, concludes that the Petitioner's objections must be overruled,1 and that the petition for writ of habeas corpus must be denied, for the reasons stated in the magistrate judge's findings and conclusions. Therefore, the findings, conclusions and recommendation of the magistrate judge are ADOPTED. Petitioner Bobby Lee Biffel's petition for writ of habeas corpus under 28 U.S.C. § 2254 is DENIED.
Biffel complains that the bottom of page 10 of the magistrate judge's report includes an incomplete sentence in analyzing Biffel's ineffectiveassistance-of-counsel claim. It appears that the logical completion of that sentence that begins "[a]pplying the Strickland . . ." is that Biffel has not shown that but for counsel's actions, "he would have been found not guilty or received a lesser sentence." The omission of this text is not prejudicial and does not support Biffel's challenge to the magistrate judge's finding on such claim.
1

Certificate of Appealability Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253.2 Rule 11 of the Rules Governing Section 2254 Proceedings now requires that the Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."3 The COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right."4 A petitioner satisfies this standard by showing "that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists of reason could conclude the issues presented are adequate to deserve

encouragement to proceed further."5 Upon review and consideration of the record in the abovereferenced case as to whether petitioner Biffel has made a showing that reasonable jurists would question this Court's rulings, the Court determines he has not and that a certificate of appealability should not issue for the reasons stated in the December 4, 2009, Findings, Conclusions, and Recommendation of the United States Magistrate Judge.6

2

See FED. R. APP. P. 22(b).

RULES GOVERNING SECTION 2254 PROCEEDINGS IN THE UNITED STATES DISTRICT COURTS, RULE 11(a) (December 1, 2009).
4 5

3

28 U.S.C.A. § 2253(c)(2)(West 2006).

Miller-El v. Cockrell, 537 U.S. 322, 326 (2003), citing Slack v. McDaniel, 529 U.S. 473, 484 (2000).
6

See FED. R. APP. P. 22(b); see also 28 U.S.C.A. § 2253(c)(2)(West 2006).

2

Therefore, a certificate of appealability should not issue. SIGNED February 18, 2010.
____________________________ TERRY R. MEANS UNITED STATES DISTRICT JUDGE

3