Murrell v. Davis
Filing
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MEMORANDUM OPINION AND ORDER. The Court therefore ORDERS that a COA will not issue from the Courts denial of relief under Rule 59(e). (Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3)
United States District Court
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
Southern District of Texas
ENTERED
August 20, 2019
David J. Bradley, Clerk
WEARREN FLOYD MURRELL,
TDCJ #01520340,
Petitioner,
VS.
LORIE DAVIS,
Respondent.
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CIVIL ACTION NO. 3:17-CV-351
APPEAL NO. 18-41157
MEMORANDUM OPINION AND ORDER
This Court dismissed the habeas petition filed by Wearren Floyd Murrell as timebarred under 28 U.S.C. § 2244(d) and denied a certificate of appealability (“COA”) (Dkt.
12, Dkt. 13). Petitioner filed a timely motion for post-judgment relief under Federal Rule
of Civil Procedure 59(e), which the Court denied because it raised arguments that were,
or could have been, made before the judgment issued (Dkt. 16).
Petitioner then filed a notice of appeal from the order denying relief under Rule
59(e) (Dkt. 17), and requested a COA from the appellate court. The appellate court has
issued an order remanding the case to this Court for “the limited purpose of allowing the
district court to rule on the question whether a COA will issue in connection with the
order entered on November 16, 2018, denying his motion to alter judgment” (Dkt. 25, at
2).
Habeas corpus actions under 28 U.S.C. § 2254 or § 2255 require a COA to
proceed on appeal. 28 U.S.C. § 2253(c)(1); Rule 11(a), RULES GOVERNING § 2254
CASES; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). A COA will not issue unless
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the petitioner makes “a substantial showing of the denial of a constitutional right,” 28
U.S.C. § 2253(c)(2), which requires a petitioner to demonstrate “‘that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or
wrong.’” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)). Under the controlling standard, a petitioner must show “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336 (internal citation
and quotation marks omitted). Where denial of relief is based on procedural grounds, the
petitioner must show not only that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right,” but also that they
“would find it debatable whether the district court was correct in its procedural ruling.”
Slack, 529 U.S. at 484. A district court may deny a COA sua sponte, without requiring
further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
Based upon the parties’ filings, all matters of record, and the applicable law, the
Court now concludes that reasonable jurists would not find its order denying Petitioner’s
Rule 59(e) motion to be debatable or wrong. The Court therefore ORDERS that a COA
will not issue from the Court’s denial of relief under Rule 59(e).
The Clerk will provide copies of this order to the parties.
SIGNED at Galveston, Texas, this 20th day of August, 2019.
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George C. Hanks Jr.
United States District Judge
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