Jones v. Thaler

Filing 25

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 21 Amended Memorandum and Recommendations, 12 MOTION for Summary Judgment with Brief in Support. (Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DARRELL WILSON JONES,

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Petitioner,

CIVIL ACTION NO. H-12-0634

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

ORDER ADOPTING RECOMMENDATION
OF THE MAGISTRATE JUDGE

Pending is Respondent's Motion for Summary Judgment (Document
No. 12) against Petitioner's Federal Application for Writ of Habeas
Corpus

(Document No.

Magistrate

Judge

recommending

that

an

1) .

The

Amended

Respondent's

Court has
Memorandum
Motion

received
and

for

from

the

Recommendation

Summary

Judgment

(Document No. 12) be GRANTED and that Petitioner's Application for
Writ of Habeas Corpus (Document No. 1) be DENIED and DISMISSED with
prejudice.

Petitioner filed Objections (Document No. 24) to the

Amended Memorandum and Recommendation.

The Court, after having

made a de novo determination of Respondent's Motion for Summary
Judgment, Petitioner's Response, Petitioner's Application for Writ
of Habeas Corpus, the Amended Memorandum and Recommendation, and
Petitioner's Objections thereto, is of

the opinion that the

findings and recommendations of the Magistrate Judge are correct

and should be and hereby are accepted by the Court in their
entirety. Accordingly,
It is ORDERED and ADJUDGED for the reasons set forth in the
Amended

Memorandum

and

Recommendation

of

the

United

States

Magistrate Judge filed on February 21, 2013, which is adopted in
its entirety as the opinion of this Court, that Respondent's Motion
for Summary Judgment Document No. 12) is GRANTED, and Petitioner's
Application for Writ of Habeas Corpus (Document No. 1) is DENIED
and DISMISSED with prejudice.

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 "a substantial showing of the
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;

Beazley v. Johnson, 242 F.3d 248, 263 (5th
Cir.), cert. d e n i e d , 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
P I

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 (5th Cir. 2000).
For the reasons set forth in the Amended Memorandum and
Recommendation, which has been adopted in its entirety as the
opinion of the Court, the Court determines that Petitioner has not
made a substantial showing of the denial of a constitutional right,
and that reasonable jurists would not debate the correctness of
either the substantive or procedural rulings.
The Clerk will enter this Order and send copies to all parties
of record.
Signed at Houston, Texas this

, 2013.