Kipp v. Stephens

Filing 16

ORDER ADOPTING Magistrate's 14 Report and Recommendations. ORDER DISMISSING Kipps 1 Petition for a Writ of Habeas Corpus. ORDER that a Certificate of Appealability is DENIED. Signed by Judge Robert Pitman. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
TIMOTHY JERROLD KIPP,
Plaintiff,
v.
LORIE DAVIS,
Defendant.

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1:16-CV-243-RP

ORDER
Before the Court in the above-entitled action is Petitioner’s Application for Habeas Corpus
Relief under 28 U.S.C. § 2254. (Dkt. 1, Dkt. 9). The case was referred to United States Magistrate
Judge Mark Lane pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure,
and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western
District of Texas. Magistrate Judge Lane filed his Report and Recommendation to deny Petitioner’s
application on August 19, 2016. Petitioner filed an objection to that report on September 2, 2016,
arguing that (1) the magistrate judge erroneously recommended that his application be denied; (2) he
is entitled to a hearing before an Article III judge; and (3) the magistrate judge erroneously
recommended that a certificate of appealability should not be issued. (Dkt. 15).
I. Objection to Magistrate’s Recommendation that Petitioner’s Application be Denied
In light of Petitioner’s objections, the Court has undertaken a de novo review of the entire
case file in this action. The Court is of the opinion that the objections do not raise any issues that
were not adequately addressed in the Report and Recommendation. 1 Therefore, finding no error, the

In his Objection, Petitioner complains that the Texas Court of Criminal Appeals and the state trial court did not
adequately consider all of his claims during state habeas review, denying him meaningful access to the court system.
(Obj., Dkt. 15, at 1–2). This claim fails. Infirmities in state habeas corpus proceedings do not constitute grounds for

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Court will accept and adopt the Report and Recommendation as filed for substantially the reasons
stated therein.
II. Petitioner’s Alleged Entitlement to Hearing Before an Article III Judge
28 U.S.C. § 636(b) provides that a judge may “designate a magistrate judge to submit to a
judge of the court proposed findings of fact and recommendations for the disposition, by a judge of
the court, of . . . applications for posttrial relief made by individuals convicted of criminal offenses.”
28 U.S.C. § 636(b)(1)(B). After the magistrate judge files his proposed findings and
recommendations with the court, a judge of the court “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. § 636(b)(1)(C). The judge “may also receive
further evidence,” but is not required to do so. See id.
III. Denial of 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
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 rejects a petitioner’s constitutional
federal habeas corpus relief. Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir. 2001); Vail v. Procunier, 747 F.2d 277 (5th Cir.
1984).

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claim 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 prisoner’s underlying
constitutional claim, a COA should issue . . . if the prisoner 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 neither debate the denial of Petitioner’s Section 2254
application 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, a certificate of appealability shall not be issued.
IT IS ORDERED that Petitioner Timothy Jerrold Kipp’s Objection to the Report and
Recommendation (Dkt. 15) is OVERRULED.
IT IS FURTHER ORDERED that the Report and Recommendation of the United States
Magistrate Judge (Dkt. 14) is ACCEPTED AND ADOPTED.
IT IS FURTHER ORDERED that Petitioner Timothy Jerrold Kipp’s Petition for a Writ
of Habeas Corpus (Dkt. 1) is DISMISSED.
IT IS FINALLY ORDERED that a Certificate of Appealability is DENIED.

SIGNED on January 30, 2017.

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ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
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