Wright v. Director, TDCJ-CID

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION KEVIN RASHAWN WRIGHT § VS. § CIVIL ACTION NO. 9:22cv64 DIRECTOR, TDCJ-CID § MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Petitioner Kevin Rashawn Wright, an inmate confined at the Coffield Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brought this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court referred this matter to the Honorable Christine L. Stetson, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The magistrate judge recommends the petition be dismissed without prejudice as successive. The court has received and considered the Report and Recommendation of United States Magistrate Judge filed pursuant to such order, along with the record, pleadings and all available evidence. Petitioner filed objections to the magistrate judge’s Report and Recommendation. The court conducted a de novo review of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes petitioner’s objections should be overruled. Petitioner objects to his petition being considered as filed pursuant to 28 U.S.C. § 2254 instead of 28 U.S.C. § 2241, as he labeled it. Petitioner states he is challenging whether he was afforded proper due process under the Fourth, Fifth, Sixth, and Fourteenth Amendments. See Objections at *4. Since petitioner is incarcerated pursuant to a state court judgment, he must seek relief under Section 2254, which “confers jurisdiction upon the federal courts to hear collateral attacks on state court judgments.” Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000). As a result, the magistrate judge correctly determined this filing should be treated 1 as a petition brought pursuant to Section 2254. Accordingly, since petitioner did not obtain leave from the Fifth Circuit for an order authorizing this court to consider the petition, the petition is an unauthorized successive petition. Alternatively, even assuming, arguendo, this court has jurisdiction to entertain the petition, petitioner’s claims are barred by the applicable one-year statute of limitations. Furthermore, petitioner is not entitled to the issuance of a certificate of appealability. An appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard for granting a certificate of appealability, like that for granting a certificate of probable cause to appeal under prior law, requires the movant to make a substantial showing of the denial of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that substantial showing, the movant need not establish that he should prevail on the merits. Rather, he must demonstrate that the issues are subject to debate among jurists of reason, that a court could resolve the issues in a different manner, or that the questions presented are worthy of encouragement to proceed further. See Slack, 529 U.S. at 483-84. Any doubt regarding whether to grant a certificate of appealability is resolved in favor of the movant, and the severity of the penalty may be considered in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S. 849 (2000). Here, petitioner has not shown that any of the issues raised by his claims are subject to debate among jurists of reason. The factual and legal questions advanced by petitioner are not novel and have been consistently resolved adversely to his position. In addition, the questions presented are not worthy of encouragement to proceed further. Therefore, petitioner has failed to make a sufficient showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of appealability shall not be issued. 2 O R D E R Accordingly, petitioner’s objections are OVERRULED. The findings of fact and conclusions of law of the magistrate judge are correct and the report of the magistrate judge is ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge’s recommendations. 3