Opinion
CIVIL ACTION NO.4:10-CV-717-Y
01-12-2012
ARTHUR LEE PIERSON Jr., v. RICK THALER, Director, T.D.C.J. Correctional Institutions Di v.
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
AND ORDER DENYING CERTIFICATE OF APPEALABILITY
In this action brought by petitioner Arthur Lee Pierson Jr. under 28 U.S.C. § 2254, the Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on November 15, 2011; and
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on December 16, 2011.
The Court, after de novo review, concludes that Petitioner's objections must be overruled, and that the petition for writ of habeas corpus should be denied for the reasons stated in the magistrate judge's findings and conclusions, and for the reasons stated in the Respondent's answer at sections III and IV.
Therefore, the findings, conclusions, and recommendation of the magistrate judge are ADOPTED.
Petitioner Arthur Lee Pierson Jr.'s petition for writ of habeas corpus is DENIED.
Certificate of Appealability
Petitioner Pierson has also moved for the issuance of a certificate of appealability. Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules Governing Section 2254 Proceedings now requires that the Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." The COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." A petitioner satisfies this standard by showing "that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists of reason could conclude the issues presented are adequate to deserve encouragement to proceed further."
RULES GOVERNING SECTION 2254 PROCEEDINGS IN THE UNITED STATES DISTRICT COURTS, RULE 11(a) (December 1, 2009).
28 U.S.C.A. § 2253(c)(2)(West 2006).
Miller-El v. Cockrell, 537 U.S. 322, 326 (2003), citing Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Upon review and consideration of the record in the above-referenced case as to whether petitioner Pierson has made a showing that reasonable jurists would question this Court's rulings, the Court determines he has not and that a certificate of appealability should not issue for the reasons stated in the November 15, 2011 Findings, Conclusions, and Recommendation of the United States Magistrate Judge.
See Fed. R. App. P. 22(b); see also 28 U.S.C.A. § 2253(c)(2)(West 2006).
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Therefore, Pierson's motion for a certificate of appealability (doc. 19) is DENIED, and a certificate of appealability should not issue.
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TERRY R. MEANS
UNITED STATES DISTRICT JUDGE