Morse v. Williams

Filing 18

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus, filed by Douglas Paul Morse. (It is recommended that Petitioners application for writ of habeas corpus be denied). Signed by Judge Andrew W. Austin. (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DOUGLAS PAUL MORSE
V.
WILLIAM STEPHENS, Director,
Texas Dept. of
Criminal Justice-Correctional
Institutions Division

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A-13-CA-330-SS

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court are Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254 (Document 1); Petitioner’s Supplemental Memorandum (Document 8); Respondent’s Answer
(Document 12); and Petitioner’s response thereto (Document 13). Petitioner, proceeding pro se, has
paid the filing fee for his application. For the reasons set forth below, the undersigned finds that
Petitioner’s application for writ of habeas corpus should be denied.
STATEMENT OF THE CASE
A.

Petitioner’s Criminal History
According to Respondent, the Director has lawful and valid custody of Petitioner pursuant

to four judgments and sentences of the 26th Judicial District Court of Williamson County, Texas,

in cause number 09-264-K26, styled The State of Texas v. Douglas Morse. A jury convicted
Petitioner of two counts of aggravated assault of a public servant, one count of unauthorized use of
a motor vehicle, and one count of evading arrest or detention in a motor vehicle. After finding
Petitioner had prior felonies and used a deadly weapon when committing the new felonies, the jury
assessed punishment at 58 years in prison.
Petitioner’s convictions were affirmed on July 8, 2011. Morse v. State, No. 03-10-00168CR, 2011 WL 2651915 (Tex. App. – Austin 2011, pet ref’d). The Texas Court of Criminal Appeals
refused Petitioner’s petition for discretionary review on November 9, 2011. Morse v. State, PD
No. 1028-11.
Petitioner also challenged his conviction in two state applications for habeas corpus relief.
The trial court recommended to the Court of Criminal Appeals that the first application should be
dismissed as non-compliant. Despite the recommendation, the Court of Criminal Appeals denied
the application without written order on February 13, 2013. Ex parte Morse, No. 76,420-02 at
cover. Petitioner’s second application was dismissed as successive on May 22, 2013. Ex parte
Morse, No. 76-420-03 at cover.
B.

Factual Background
The factual background of this case is found in the Court of Appeals opinion and is repeated

below.
Morse filed a motion in limine seeking to limit the State’s use of evidence
about an altercation with law enforcement on the day before the charged offenses
occurred. Morse asserted that the evidence was improper extraneous offense
evidence and that its probative value was substantially outweighed by the risk of
unfair prejudice. See Tex. R. Evid. 403, 404(b). The trial court denied the motion
in limine, but granted Morse a running objection to the evidence. The court stated
that the events of February 11, 2009, in Live Oak County were intertwined with and
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provided context for the events of February 12, 2009, in Williamson County for
which Morse was being tried. The court also stated that the evidence was admissible
to show motive, intent, and lack of mistake.
On February 11, 2009, McMullen County Sheriff’s Deputy Investigator
Jasper McDonald was driving to work in his pickup through Live Oak County when
he stopped a truck driven by Morse for having cancelled license plates. McDonald
testified that, upon learning that there was a warrant for Morse’s arrest, McDonald
arrested him, handcuffed him, and began to inventory his truck. Two highway patrol
troopers arrived to assist. Meanwhile, Morse maneuvered his cuffed hands to the
front of his body, jumped into McDonald’s pickup, and drove away. The troopers
attempted to stop Morse, but fell away from the pickup as it gained speed. As Morse
drove toward him, McDonald ran backwards and fired at the pickup. The officers
then got in the troopers’ vehicle and pursued Morse to no avail. Morse left the road,
went through a fence, and drove cross country. Peace officers later discovered the
pickup abandoned early the next morning. An inventory of the pickup appeared to
show that Morse had taken one of McDonald’s weapons, a .357 revolver.FN1 The
troopers who stopped to assist confirmed these events through testimony from their
perspectives.
FN1. McDonald later discovered that he had left the weapon at his home.
United States Probation Officer Jerry Adams testified that Morse had a
probation meeting scheduled on the morning of February 12, 2009. Adams testified
that Morse called to tell him about the Live Oak County incident and to say he would
not be attending the meeting. Adams testified that Morse told him he would not go
back to jail “no matter what,” that he would not hurt anyone, and that he would not
be speaking with Adams again. Adams testified that Morse clearly knew that he had
committed new offenses in Live Oak County that could lead to his incarceration.
United States Deputy Marshal Darren Sartin testified that he began looking
for Morse after hearing about the Live Oak County incident and learning that Morse
might be in Austin. He testified that this information affected the way law
enforcement would approach Morse. They were seeking Morse on both the
preexisting warrant and charges arising from the Live Oak County events. Sartin
learned that Morse was going to an apartment complex in northwest Austin just
inside Williamson County, and he directed a team of officers to converge on that site.
Morse was returning from the apartment to his car, a Dodge Charger, when Sartin
arrived.
Deputy United States Marshal Brian Sheely pulled his vehicle up behind
Morse’s car and activated his flashing emergency lights. Sheely testified that he got
out of his vehicle wearing his badge and a bullet-proof vest emblazoned with the
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words “US Marshal” and a patch badge. Sheely testified that he identified himself
as “police” and gave “verbal police commands.” Before he could tell Morse to hold
his hands up, however, Morse started his car and drove forward over the curb and
onto the lawn, maneuvering to return to the parking lot.
Travis County Sheriff’s Deputy Ben Wright was forced to jump out of the
way to avoid being hit by Morse’s car. Sartin testified that, had Wright not moved,
Morse would have killed him. Deputy United States Marshal Eric McGill moved his
vehicle to block Morse’s path and Morse accelerated and rammed his car into
McGill’s vehicle toward the rear of the side in which the passenger, Austin Police
Officer Gil Cardenas, was riding. Morse’s car jumped another curb, then crashed
into a tree and stopped. Sartin testified that he approached Morse’s car, announced
that he was a police officer, and told Morse to show his hands. Morse got out of his
car and ran despite several officers’ repeated commands to stop. Sartin testified that
Morse looked right at him and reached toward a front pocket or waistband. Sartin
said that he knew that Morse had the previous day fought with police officers, stolen
a police car, reportedly taken a .357, and told his parole officer “I’m not going back
to jail.” In explaining his reasons for shooting Morse, Sartin testified that this recent
history, coupled with Morse’s ongoing attempts to evade capture, caused Sartin to
fear that Morse was going to pull a weapon and harm somebody, including Sartin
himself.
Deputy Wright’s testimony confirmed that McGill had his lights and sirens
on when he pulled behind Morse’s car. Wright approached the car commanding
Morse to turn the car off and get out. When Morse instead drove his car onto the
lawn, Wright ran toward his own vehicle. He then heard Morse accelerating and ran
between parked cars to avoid being hit. Wright testified that he was directly in
Morse’s path and felt he did not have time to pull his gun. Wright saw Morse’s
vehicle run into McGill’s vehicle. He testified that McGill joined the foot pursuit of
Morse, but that Cardenas was unable to do so because the crash damage prevented
him from opening his door.
Several other witnesses testified, adding their perspectives and details about
the event. Other peace officers and residents of the apartment complex testified
about the events at the complex. McGill and Cardenas testified that Morse’s running
his car into their vehicle caused them back and neck pain for which they received
treatment and medication for a few days. The general manager of a car dealership
in Columbus, Texas testified that a Dodge Charger was stolen from his dealership in
October 2008. The vehicle identification number on the stolen car matched the VIN
on the Dodge Charger that Morse was driving when apprehended in Williamson
County.

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Morse v. State, No. 03-10-00168-CR, 2011 WL 2651915, at *1-3 (Tex. App. – Austin 2011, pet.
ref’d).
C.

Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
1.

His trial counsel was ineffective because he failed to:
a.

investigate data from the manufacturer of the 2009 Dodge Charger;

b.

advance a scientific defense based on data available; and

c.

call Chris Holt and Justin Drake as witnesses to discredit Ranger Coleman’s
testimony;

2.

3.

D.

The prosecution erred by failing to disclose Brady material in the form of vehicle
speed data; and
His appellate counsel was ineffective because he failed to show prejudice in his claim
of trial court error.

Exhaustion of State Court Remedies
Respondent does not contest that Petitioner has exhausted his state court remedies regarding

the claims brought in this application. A review of the state court records submitted by Respondent
shows that Petitioner has properly raised these claims in previous state court proceedings.
DISCUSSION AND ANALYSIS
A.

The Antiterrorism and Effective Death Penalty Act of 1996
The Supreme Court has summarized the basic principles that have grown out of the Court’s

many cases interpreting the 1996 Antiterrorism and Effective Death Penalty Act. See Harrington
v. Richter, – U.S. –, 131 S. Ct. 770, 783-85 (2011). The Court noted that the starting point for any
federal court in reviewing a state conviction is 28 U.S.C. § 2254, which states in part:

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An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim–
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

28 U.S.C. § 2254(d). The Court noted that “[b]y its terms § 2254(d) bars relitigation of any claim
‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”
Harrington, 131 S. Ct. at 784.
One of the issues Harrington resolved was “whether § 2254(d) applies when a state court’s
order is unaccompanied by an opinion explaining the reasons relief has been denied.” Id. Following
all of the Courts of Appeals’ decisions on this question, Harrington concluded that the deference due
a state court decision under § 2554(d) “does not require that there be an opinion from the state court
explaining the state court’s reasoning.” Id. (citations omitted). The Court noted that it had
previously concluded that “a state court need not cite nor even be aware of our cases under
§ 2254(d).” Id. (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). When there is no
explanation with a state court decision, the habeas petitioner’s burden is to show there was “no
reasonable basis for the state court to deny relief.” Id. And even when a state court fails to state
which of the elements in a multi-part claim it found insufficient, deference is still due to that
decision, because “§ 2254(d) applies when a ‘claim,’ not a component of one, has been adjudicated.”
Id.

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As Harrington noted, § 2254(d) permits the granting of federal habeas relief in only three
circumstances: (1) when the earlier state court’s decision “was contrary to” federal law then clearly
established in the holdings of the Supreme Court; (2) when the earlier decision “involved an
unreasonable application of” such law; or (3) when the decision “was based on an unreasonable
determination of the facts” in light of the record before the state court. Id. at 785 (citing 28 U.S.C.
§ 2254(d); Williams v. Taylor, 529 U.S. 362, 412 (2000)). The “contrary to” requirement “refers
to the holdings, as opposed to the dicta, of . . . [the Supreme Court’s] decisions as of the time of the
relevant state-court decision.” Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir. 2000) (quotation
and citation omitted).
Under the “contrary to” clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] on
a question of law or if the state court decides a case differently than . . . [the Supreme
Court] has on a set of materially indistinguishable facts.
Id. at 740-41 (quotation and citation omitted). Under the “unreasonable application” clause of
§ 2254(d)(1), a federal court may grant the writ “if the state court identifies the correct governing
legal principle from . . . [the Supreme Court’s] decisions but unreasonably applies that principle to
the facts of the prisoner’s case.” Id. at 741 (quotation and citation omitted). The provisions of
§ 2254(d)(2), which allow the granting of federal habeas relief when the state court made an
“unreasonable determination of the facts,” are limited by the terms of the next section of the statute,
§ 2254(e). That section states that a federal court must presume state court fact determinations to
be correct, though a petitioner can rebut that presumption by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1). But absent such a showing, the federal court must give deference to the state
court’s fact findings. Id.

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B.

Ineffective Assistance of Trial Counsel
In his first ground for relief, Petitioner argues he was denied effective assistance of counsel.

Specifically, Petitioner contends counsel was ineffective because his attorney (1) failed to unearth
data from the manufacturer of the 2009 Dodge Charger which would have assisted in building a
defense, (2) failed to advance a scientific defense using manufacturer and collision data what was
available, and (3) failed to allow Chris Holt and Justin Drake to testify. Included in his final claim
of ineffective assistance of counsel is Petitioner’s statement that he was not allowed to testify on his
own behalf.
Ineffective assistance of counsel claims are analyzed under the well-settled standard set forth
in Strickland v. Washington, 466 U.S. 668 (1984):
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a defendant can make
both showings, it cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result unreliable.
Id. at 687. In deciding whether counsel’s performance was deficient, the Court applies a standard
of objective reasonableness, keeping in mind that judicial scrutiny of counsel’s performance must
be highly deferential. Id. at 686-689. “A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Id. at 689. “Because of the difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional

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assistance; that is, the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. (Citation omitted). Ultimately, the
focus of inquiry must be on the fundamental fairness of the proceedings whose result is being
challenged. Id. at 695-97. Accordingly, in order to prevail on a claim of ineffective assistance of
counsel, a convicted defendant must show that (1) counsel’s representation fell below an objective
standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id. at 687.
Petitioner first alleges trial counsel was ineffective because he failed to investigate data from
the manufacturer of the 2009 Dodge Charger, the vehicle he used to ram Deputy Marshal McGill’s
vehicle. Specifically, Petitioner argues trial counsel should have discovered that a 2009 Charger’s
airbags deploy when the vehicle is involved in a collision at a speed of 14 or more miles per hour,
and since the airbags in the Charger did not deploy, the Charger was not going very fast at the time
of the collision. Petitioner relies on statements he found on the Internet. Petitioner similarly alleges
counsel was ineffective because he failed to advance a scientific defense based on additional data
he found on the Internet.
An attorney’s failure to investigate the case against the defendant and to interview witnesses
can support a finding of ineffective assistance. Bryant v. Scott, 28 F.3d 1411, 1435 (5th Cir. 1994).
However, in order to establish that counsel was rendered ineffective by virtue of a failure to
investigate the case against a defendant or to discover and present evidence, a convicted defendant
must do more than merely allege a failure to investigate; he must state with specificity what the
investigation would have revealed, what evidence would have resulted from that investigation, and
how such would have altered the outcome of the case. See Anderson v. Collins, 18 F.3d 1208, 1221
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(5th Cir. 1994); Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993); United States v. Green, 882
F.2d 999, 1003 (5th Cir. 1989); Lockhart v. McCotter, 782 F.2d 1275, 1282-83 (5th Cir. 1986), cert.
denied, 479 U.S. 1030 (1987).
Petitioner has failed to show his trial counsel was deficient or the alleged deficiency
prejudiced the outcome of his case. Morse’s claim incorrectly implies he could not be convicted of
aggravated assault on a public servant because he was not driving very fast when he rammed Deputy
Marshal McGill’s vehicle. As explained by Respondent, Morse’s speed is irrelevant as to whether
he caused bodily injury to the officers involved when he rammed the Chevy Avalanche. In addition,
all of the witnesses, including residents of the apartment complex where Petitioner was arrested,
testified at trial that Petitioner accelerated into the Chevy Avalanche. Testimony also revealed the
Avalanche was totaled by the collision, and its occupants suffered back and neck pain as a
consequence of the collision. Moreover, the purported evidence Petitioner contends should have
been introduced is contrary to counsel’s trial strategy. Petitioner’s attorneys attempted to show
Petitioner was not trying to crash into the Avalanche but rather was attempting to “shoot the gap”
between the Avalanche and another vehicle in order to exit the apartment complex’s parking lot.
Trial counsel implied the crash was caused by the Deputy Marshal backing up to close the gap. As
such, trial counsel did not act deficiently by failing to introduce Petitioner’s data found on the
Internet, and Petitioner was not prejudiced thereby.
Petitioner next complains his attorney failed to call Chris Holt and Justin Drake as witnesses
to discredit Ranger Coleman’s testimony. Petitioner asserts Holt and Drake could have testified that
Petitioner got into the passenger side of the Charger at the HEB in San Antonio instead of the

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driver’s side as testified to by Ranger Coleman. In addition, he claims they could have testified that
Petitioner had permission to use the Charger and Petitioner was not aware the Charger was stolen.
The Fifth Circuit has repeatedly held that complaints of uncalled witnesses are not favored
in federal habeas corpus review because the presentation of testimonial evidence is a matter of trial
strategy and because allegations of what a witness would have stated are largely speculative. Day
v. Quarterman, 566 F.3d 527 (5th Cir. 2009). Thus, to prevail on an ineffective assistance claim
based on counsel’s failure to call a witness, the petitioner must name the witness, demonstrate that
the witness was available to testify and would have done so, set out the content of the witness’s
proposed testimony, and show that the testimony would have been favorable to a particular defense.
Id. (citing Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)).
Petitioner has not shown deficient performance or prejudice. Petitioner has not provided the
Court with an affidavit of Drake. Although he did provide the Court with the affidavit of Holt,
Petitioner’s nephew, Holt states nothing about Petitioner having permission to use the Charger or
whether Petitioner was unaware the Charger was stolen. Moreover, Petitioner was heard by multiple
officers after his take down in Austin admitting he had stolen the Charger. Also, it is immaterial
whether Petitioner got in to the driver’s side or the passenger side of the Charger in the HEB parking
lot in San Antonio at approximately 2:00 a.m. on February 12, 2009, many hours before Petitioner’s
arrest.
Petitioner also asserts he expressed his desire to testify on his behalf but was denied that
opportunity without explanation. Petitioner’s assertion is directly in conflict with the record, which
indicates his attorneys discussed with Petitioner the possibility of his testifying and Petitioner, along

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with his attorneys, decided it would be best for Petitioner not to testify. 6 RR 3. The trial court
verified with Petitioner that he agreed with the decision. 6 RR 4.
Having independently reviewed the entire state court record, this Court finds nothing
unreasonable in the state court’s application of clearly established federal law or in the state court’s
determination of facts in light of the evidence. Accordingly, the Court is of the opinion that 28
U.S.C. § 2254, as amended by the AEDPA, bars habeas corpus relief on Petitioner’s claim that he
received ineffective assistance of trial counsel.
C.

Brady Claim
Petitioner next argues the prosecution erred by failing to disclose Brady material in the form

of vehicle speed data.
In Brady v. Maryland, 373 U.S. 83 (1963), the Court held the suppression by the prosecution
of evidence favorable to an accused after a request violates due process where the evidence is
material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.
To establish a Brady violation, Petitioner must prove (1) the prosecutor suppressed or withheld
evidence (2) which was favorable and (3) material to the defense. Id. at 87; Allridge v. Scott, 41
F.3d 213, 217 (5th Cir. 1994), cert. denied, 514 U.S. 1108 (1995). The evidence is material only if
there is a reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682 (1985). A
“reasonable probability” is a probability sufficient to undermine confidence in the outcome of the
trial. Id. Brady encompasses evidence that may be used to impeach a witness’s credibility. Id. at
676. There is no Brady violation if the defendant, using due diligence, could have obtained the

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information. Williams v. Scott, 35 F.3d 159, 163 (5th Cir. 1994), cert, denied, 513 U.S. 1137 (1995)
(citing United States v. Ramirez, 810 F.2d 1338, 1343 (5th Cir.), cert. denied, 484 U.S. 844 (1987)).
As explained by Respondent, Petitioner has not met any of the Brady elements. Nothing in
the record indicates the prosecution withheld vehicle speed data. In addition, Morse’s exact speed
is neither material nor favorable to his defense. As explained above, Morse’s speed is irrelevant as
to whether he caused bodily injury to the officers involved when he rammed the Chevy Avalanche.
Finally, Petitioner has not established he could not have obtained vehicle speed data using his own
due diligence.
Having independently reviewed the entire state court record, this Court finds nothing
unreasonable in the state court’s application of clearly established federal law or in the state court’s
determination of facts in light of the evidence. Accordingly, Petitioner’s claim does not warrant
federal habeas relief.
D.

Ineffective Assistance of Appellate Counsel
In his final ground for relief, Petitioner argues his appellate counsel was ineffective because

he failed to show prejudice in his claim of trial court error. As noted above, on appeal Petitioner
contended the trial court abused its discretion by admitting evidence regarding the incident in Live
Oak County the day before the offenses for which he was convicted.
A criminal defendant has a constitutional right to the effective assistance of counsel at trial
and on a first appeal as of right. U.S. Const. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95,
(1985); Strickland, 466 U.S. at 688; Anders v. California, 386 U.S. 738, 744 (1967). An ineffective
assistance claim is governed by the familiar standard set forth in Strickland, 466 U.S. at 668. See
also Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001) (applying the Strickland standard to
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ineffective assistance claims against appellate counsel). As explained earlier, to establish ineffective
assistance of counsel Petitioner must show (1) that counsel’s performance fell below an objective
standard of reasonableness, and (2) that but for counsel’s deficient performance the result of the
proceeding would have been different. Strickland, 466 U.S. at 688. To show prejudice, a petitioner
must show that, but for appellate counsel’s performance, there is a reasonable probability he would
have prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285 (2000).
The mere fact an attorney’s argument did not succeed does not make an attorney
constitutionally ineffective. Moreover, the admission of the evidence regarding the Live Oak County
incident was harmless. As noted by the appellate court, the evidence supporting Petitioner’s
convictions was overwhelming and uncontroverted.
Having independently reviewed the entire state court record, this Court finds nothing
unreasonable in the state court’s application of clearly established federal law or in the state court’s
determination of facts in light of the evidence. Accordingly, the Court is of the opinion that 28
U.S.C. § 2254, as amended by the AEDPA, bars habeas corpus relief on Petitioner’s claim that he
received ineffective assistance of appellate counsel.
RECOMMENDATION
It is recommended that Petitioner’s application for writ of habeas corpus be denied.
CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c) (1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective

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December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a petitioner’s
constitutional claims 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. “When a
district court denies a habeas petition on procedural grounds without reaching the petitioner’s
underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists
of reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the dismissal or denial of the Petitioner’s
section 2254 petition on substantive or procedural grounds, nor find that the issues presented are
adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court shall not
issue a certificate of appealability.
OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are

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being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153 (1985);
Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 2nd day of September, 2014.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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