Becerra v. Stephens
Filing
31
ORDER ADOPTING RECOMMENDATION OF THE MAGISTRATE. A Certificate of Appealability is Denied. (Signed by Judge Ewing Werlein, Jr) Parties notified.(gkelner, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HOMERO BECERRA,
Petitioner,
V.
WILLIAM STEPHENS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION,
Respondent.
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CIVIL ACTION NO. H-13-2832
ORDER ADOPTING RECOMMENDATION
OF THE MAGISTRATE JUDGE
Pending is Respondent's Motion to Dismiss
(Document No.
21)
against Petitioner's Federal Application for Writ of Habeas Corpus
(Document No.1).
The Court has received from the Magistrate Judge
a
Recommendation
Memorandum and
recommending
that
Respondent's
Motion to Dismiss be GRANTED and that Petitioner's Application for
Writ of Habeas Corpus (Document No.1) be DENIED and DISMISSED with
prejudice as time-barred. Petitioner filed Objections (Document No.
30) to the Memorandum and Recommendation.
made
a
de
novo
determination
of
The Court, after having
Respondent's
to
Dismiss,
Petitioner's Application for Writ of Habeas Corpus, the Memorandum
and Recommendation, and Petitioner's Objections, 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
Memorandum and Recommendation of the United States Magistrate Judge
filed on October 20, 2014, which is adopted in its entirety as the
opinion
of
this
Court,
that
Respondent's
Motion
to
Dismiss
(Document No. 21) is GRANTED, and Petitioner's Federal Application
for Writ of Habeas Corpus (Document No.1) is DENIED and DISMISSED
with prejudice as time-barred.
ORDERED
that
a
It is further
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.
standard "includes showing that reasonable
§
2253(c) (2).
This
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."
v. McDaniel, 120 S. ct. 1595, 1603-1604 (2000)
and citations omitted).
Slack
(internal quotations
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 (5 th Cir.), cert. denied, 122
S.Ct.
329
procedural
(2001).
grounds,
When
the
the
claims
have
petitioner must
been
show
that
dismissed
on
"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
2
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,
wi thout
requiring
further
Johnson, 211 F.3d 895, 898
For
the
Recommendation,
reasons
which has
briefing
or
argument.
Alexander
v.
(5 th Cir. 2000).
set
forth
in
been adopted
the
in
its
Memorandum
and
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
3
5:!{f!£y Of~ 2014.
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