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.