Guerra v. Thaler

Filing 16

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 12 MOTION to Dismiss PURSUANT TO 28 U.S.C. § 2244(d) WITH BRIEF IN SUPPORT is GRANTED, 15 Memorandum and Recommendations. A certificate of appealability is DENIED.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RUBEN GUERRA,

§
§
§

Petitioner,

§

V.

§
§

RICK THALER, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION,

CIVIL ACTION NO. H-11-2267

§
§
§
§
§
§

Respondent.

ORDER ADOPTING RECOMMENDATION
OF THE MAGISTRATE JUDGE

Pending is Respondent's Motion to Dismiss Pursuant to 28
U.S.C.

§

2244 (d) (Document No. 12) against Petitioner's Federal

Application for Writ of Habeas Corpus (Document No. 1). The Court
has

received

from

the

Magistrate

Judge

a

Memorandum

and

~ecommendationrecommending that Respondent's Motion to Dismiss be
GRANTED and that Petitioner1 Application for Writ of Habeas Corpus
s
(Document No. 1) be DENIED and DISMISSED with prejudice as timebarred.

No objections have been filed to the Memorandum and

Recommendation.

The

Court,

after

having

made

a

de

novo

determination of Respondent's Motion to Dismiss, Petitioner's
Application for Writ of Habeas Corpus, and the Memorandum and
~ecommendation, is

of

the

opinion

that

the

findings

and

recommendations of the Magistrate Judge are correct and should be
and

hereby

Accordingly,

are

accepted

by

the

Court

in

their

entirety

It is ORDERED and ADJUDGED for the reasons set forth in the
Memorandum and Recommendation of the United States Magistrate Judge
filed on October 28, 2011, which is adopted in its entirety as the
opinion of this Court, that Respondent's Motion to Dismiss Pursuant
to

28

U.S.C.

Petitioner's

§

2244(d)

Federal

(Document No.

Application

for

12)

Writ

is
of

GRANTED, and
Habeas

Corpus

(Document No. 1) is DENIED and DISMISSED with prejudice as timebarred.

It is further

ORDERED that a certificate of appealability is DENIED. A
certificate of appealability from a habeas corpus proceeding will
not issue unless the petitioner makes ' substantial showing of the
a
denial of a constitutional right."

28 U.S.C.

§

2253 (c)(2). This

standard "includes showing 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." Slack
v. McDaniel, 120 S. Ct. 1595, 1603-1604 (2000) (internal quotations
and citations omitted). Stated differently, where the claims have
been dismissed on the merits, the petitioner "must demonstrate that
reasonable jurists would find the district court's assessment of
the constitutional claims debatable or wrong."

Id.
- at 1604;

Beasley v. Johnson, 242 F.3d 248, 263 (5th
Cir.), cert. denied, 122
S.Ct. 329

(2001).

When

the

claims have been dismissed on

procedural grounds, the petitioner must show that 'jurists

of

reason would find it debatable whether the petition states a valid

claim of the denial of constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling."

Slack, 120 S. Ct. at 1604.

A

district court may deny a certificate of appealability sua sponte,
without requiring further briefing or argument.

Alexander v.

Johnson, 211 F.3d 895, 898 ( 5 t h Cir. 2000).
For

the

reasons

set

forth

in

the

Memorandum

and

Recommendation, which has been adopted in its entirety as the
opinion of the Court, the Court determines that reasonable jurists
would not debate the correctness of the limitations ruling.
The Clerk will enter this Order and send copies to all parties
of record.
/-

Signed at Houston, Texas this

EWING ,
N
I
)
J
L
?
@
w
JR.
UNITED ,~?&Es DISTRICT JUDGE

, 2011.

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