Pena v. Stephens

Filing 86

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: 74 Memorandum and Recommendations, granting 45 MOTION for Summary Judgment with Brief in Support. In the event that Petitioner seeks a Certificate of Appealability, the request is DENIED. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ALLEN PENA; aka PENA,
Petitioners,
VS.
WILLIAM STEPHENS,
Respondent.

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§ CIVIL ACTION NO. 2:14-CV-334
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Respondent William Stephens’s motion for summary
judgment (D.E. 45), seeking dismissal of Petitioner Allen Pena’s Petition for Writ of
Habeas Corpus which was filed pursuant to 28 U.S.C. §§ 2241 and 2254 (D.E. 1). On
April 1, 2015, United States Magistrate Judge B. Janice Ellington issued her
Memorandum and Recommendation (“M&R”) (D.E. 74), recommending that
Respondent’s motion be granted and that a Certificate of Appealability be denied. This
Court received Petitioner’s timely-filed objections (D.E. 77) on April 14, 2015.
Petitioner’s objections are set out and discussed below.
Petitioner’s first objection, construed liberally, challenges the Magistrate Judge’s
conclusion that two of his claims—that the prosecution withheld exculpatory evidence
and that they relied on prejudicial testimony—are procedurally barred. D.E. 77, p. 4;
D.E. 74, pp. 8-10. As the Magistrate Judge discussed, “the general rule that a federal
court cannot review the merits of a state prisoner’s habeas claim if the claim is
procedurally defaulted is subject to two exceptions.” Rocha v. Thaler, 626 F.3d 815, 822
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(5th Cir. 2010). One of those exceptions is when the prisoner can show cause for and
prejudice from the procedural default.

Id.

Although the substance of Petitioner’s

objection is unclear, he seems to offer only conclusory statements that cause and
prejudice exist for this Court to review the merits of his two claims. D.E. 77, p. 4. This
Court finds no error in the Magistrate Judge’s recommendation because Petitioner has
failed to show cause and prejudice. D.E. 74, pp. 9-10 (citing Murray v. Carrier, 477 U.S.
478, 488 (1986)). As such, Petitioner’s first objection is OVERRULED.
Second, Petitioner objects to the Magistrate Judge’s conclusion that his ineffective
assistance of appellate counsel claim should be dismissed. D.E. 77, p. 5. Petitioner,
however, does not offer a cognizable argument in support of his objection.

The

Magistrate Judge adequately addressed Petitioner’s ineffective assistance of appellate
counsel claim, concluding that it was unexhausted and procedurally barred. D.E. 74, p. 7.
Seeing no error in the Magistrate Judge’s conclusion, Petitioner’s second objection is
OVERRULED.
Petitioner’s third and final objection concerns the Magistrate Judge’s
recommendation that a request for a Certificate of Appealability be denied. D.E. 77, pp.
1-2. Petitioner offers only conclusory statements in support of his objection. Ross v.
Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (“[M]ere conclusory allegations do not raise
a constitutional issue in a habeas proceeding.”). Finding no error in the Magistrate
Judge’s recommendation to deny a request for a Certificate of Appealability, Petitioner’s
third objection is OVERRULED.

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Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s M&R (D.E. 74), as well as Petitioner’s objections, and
all other relevant documents in the record, and having made a de novo disposition of the
portions of the Magistrate Judge’s M&R to which the objections were specifically
directed, this Court OVERRULES Petitioner’s objections and ADOPTS as its own the
findings and conclusions of the Magistrate Judge. Accordingly, Respondent’s motion for
summary judgment (D.E. 45) is GRANTED and this action is DISMISSED. In the
event that Petitioner seeks a Certificate of Appealability, the request is DENIED.

ORDERED this 17th day of June, 2015.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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