Opinion
CIVIL ACTION NO. 9:15cv136
12-02-2015
TOM CALVIN COLE v. DIRECTOR, TDCJ-CID
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Petitioner Tom Calvin Cole, an inmate confined within the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed the above-styled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The court previously referred this matter to the Honorable Zack Hawthorn, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to 28 U.S.C. § 636 and applicable orders of this Court. The Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge concerning this matter. The Magistrate Judge recommends the petition be dismissed without prejudice for failure to exhaust state habeas remedies.
The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record and pleadings. No objections were filed to the Report and Recommendation.
Accordingly, the findings of fact and conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is ADOPTED as the opinion of the court. A final judgment shall be entered dismissing the petition in accordance with the recommendation of the Magistrate Judge.
In addition, the court is of the opinion petitioner is not entitled to a certificate of appealability in this matter. An appeal from a judgment denying federal habeas relief may not proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard for a certificate of appealability requires the petitioner to make a substantial showing of the denial of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84; Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, the petitioner need not demonstrate that he would prevail on the merits. Rather, he must demonstrate that the issues he raised 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 should be resolved in favor of the petitioner, 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. 2000).
In this case, the petitioner has not shown that the issue of whether he exhausted his state habeas remedies is subject to debate among jurists of reason. The factual and legal issues raised by petitioner have been consistently resolved adversely to his position and the questions presented are not worth of encouragement to proceed further. As a result, a certificate of appealability shall not issue in this matter. SIGNED this 2nd day of December, 2015.
/s/_________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE