Verdine v. Dir., TDCJ-CID

Full title: CHARLES JEROME VERDINE v. DIRECTOR, TDCJ-CID

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION

Date published: Apr 3, 2020

CIVIL ACTION NO. 1:19-CV-280 (E.D. Tex. Apr. 3, 2020)

Opinion

CIVIL ACTION NO. 1:19-CV-280

04-03-2020

CHARLES JEROME VERDINE v. DIRECTOR, TDCJ-CID

Thad Heartfield United States District Judge

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Petitioner, Charles Jerome Verdine, a prisoner confined at the Michael Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma pauperis, filed 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 dismissed as unexhausted and time-barred.

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. No objections to the Report and Recommendation of United States Magistrate Judge have been filed to date.¹

1 Petitioner filed correspondence on November 1, 2019 which is difficult to decipher (docket entry no. 14). On November 20, 2019, another inmate filed a Notice with the Court stating petitioner could not read or write and was trying to find help from another inmate to help him file a response and that the unit was on lock down (docket entry no. 13). Despite ample time to do so, petitioner has yet to file Objections. --------

ORDER

Accordingly, 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 accordance with the recommendations of the Magistrate Judge.

Furthermore, the Court is of the opinion petitioner is not entitled to a certificate of appealability. An appeal from a judgment denying post-conviction collateral 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 (2000); Elizalde v. Dretke, 362 F.3d 323, 328 (5^th Cir. 2004). To make a substantial showing, the petitioner need not establish that he would 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 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 (5^th Cir.), cert. denied, 531 U.S. 849 (2000).

In this case, petitioner has not shown that any of the issues would be subject to debate among jurists of reason. The questions presented are not worthy of encouragement to proceed further. Therefore, the petitioner has failed to make a sufficient showing to merit the issuance of certificate of appealability. Accordingly, a certificate of appealability will not be issued.

SIGNED this the 3 day of April, 2020.

/s/_________

Thad Heartfield

United States District Judge