Opinion
CIVIL ACTION NO. 9:11cv161
02-28-2021
TAVAERAS LAMONT KIMBLE v. DIRECTOR, TDCJ-CID
** NOT FOR PRINTED PUBLICATION **
ORDER OVERRULING OBJECTIONS AND ACCEPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Petitioner Tavaeras Lamont Kimble, an inmate confined at the Coffield Unit, 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 Zack Hawthorn, 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 denied and dismissed.
The court has received and considered the Report and Recommendation of United States Magistrate Judge filed pursuant to such order, along with the record and pleadings. Petitioner filed objections to the Report and Recommendation. This requires 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 de novo review, the court concludes petitioner's objections should be overruled. Petitioner has failed to satisfy his burden of proof regarding his claims and has failed to demonstrate he is entitled to relief. The Texas Court of Criminal Appeals denied petitioner's state habeas petition on the merits. See Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). Additionally, this court has reviewed petitioner's claims and, under any standard, this court finds petitioner's claims are without merit and fail to establish a constitutional violation. Specifically, petitioner has failed to show counsel's performance was deficient, or associated prejudice, as required. Finally, to the extent petitioner's current claims may be interpreted as different than the claims presented to the state court, such claims are unexhausted and must be dismissed.
Petitioner has failed to show that the state court adjudication was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States or that the state court adjudication 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. Accordingly, petitioner's grounds for review should be denied and dismissed.
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 the movant 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.
ORDER
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 ACCEPTED. A final judgment will be entered in this case in accordance with the Magistrate Judge's recommendations.
So ORDERED and SIGNED, Feb 28, 2021.
/s/_________
Ron Clark
Senior Judge