Canales v. Davis

Filing 51

ORDER ADOPTING 33 MEMORANDUM AND RECOMMENDATIONS and granting re: 15 MOTION FOR SUMMARY JUDGMENT. Petitioner's petition for writ of habeas corpus 1 is DENIED. A certificate of appealability is GRANTED only as described in this Order.(Signed by Judge David S Morales) Parties notified.(arodriguez, 2)

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Case 2:19-cv-00330 Document 51 Filed on 01/07/21 in TXSD Page 1 of 2 United States District Court Southern District of Texas ENTERED UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION VICTOR HUGO CANALES; aka RIVERA-SALAZAR, Petitioner, VS. LORIE DAVIS, Respondent. § § § § § § § § § January 07, 2021 Nathan Ochsner, Clerk CIVIL ACTION NO. 2:19-CV-330 ORDER ADOPTING MEMORANDUM & RECOMMENDATION Before the Court is Magistrate Judge Julie Hampton’s Memorandum and Recommendation (M&R). (D.E. 33). The M&R recommends that the Court grant Respondent’s motion for summary judgment (D.E. 15) and dismiss Petitioner’s petition for writ of habeas corpus (D.E. 1). However, the M&R recommends that the Court grant Petitioner a certificate of appealability. (D.E. 33, p. 2); see 28 U.S.C. § 2253(c). The parties were provided proper notice of, and the opportunity to object to, the Magistrate Judge’s M&R. See U.S.C. § 636(b)(1); FED R. CIV. P. 72(b); General Order No. 2002-13. Petitioner timely filed objections to the M&R. (D.E. 44).1 Having carefully reviewed the proposed findings and conclusions of the M&R, the record, the applicable law, and having made a de novo review of the portions of the M&R to which Petitioner’s 1 Petitioner also filed a premature motion for a certificate of appealability in Docket Entry 45. The Magistrate Judge terminated the premature motion, as the district court had not yet ruled on the M&R at that time, and indicated that the filing should be construed as objections to the Magistrate Judge’s recommendation to grant a certificate of appealability on only a single issue. (D.E. 47). Accordingly, the Court has considered Docket Entry 45 as objections to the M&R (D.E. 33) and overrules those objections to the extent they are contrary to the M&R’s recommendation. 1/2 Case 2:19-cv-00330 Document 51 Filed on 01/07/21 in TXSD Page 2 of 2 objections were directed, 28 U.S.C. § 636(b)(1), the court OVERRULES Petitioner’s objections. (D.E. 44). Accordingly, the Court: (1) ADOPTS the M&R in its entirety. (D.E. 33). (2) Respondent’s motion for summary judgment (D.E. 15) is GRANTED. (3) Petitioner’s petition for writ of habeas corpus is DENIED. (D.E. 1). (4) A certificate of appealability is GRANTED only as to the following issue: Whether the state court’s denial of Petitioner’s ineffective-assistance claim was contrary to, or an unreasonable application of, clearly established federal law where counsel failed to object or seek a curative instruction to the state’s questioning about the details of Petitioner’s prior drug conviction. See (D.E. 33, p. 23).2 SO ORDERED. DAVID S. MORALES UNITED STATES DISTRICT JUDGE Dated: Corpus Christi, Texas January 7, 2021 2 Petitioner also prematurely filed a notice of appeal (D.E. 46), apparently appealing the M&R before the district court had ruled on it, and before any certificate of appealability had been granted as to any issue in this habeas corpus action. See 28 U.S.C. § 2253(c). Petitioner’s notice of appeal is considered timely as of the date of this order. See FED. R. APP. P. 3(a), 4(a)(1)(A). 2/2

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