Opinion
CIVIL ACTION NO. 1:12-CV-298
07-30-2014
ROBERT GRIMES v. DIRECTOR, TDCJ-CID
ORDER OVERRULING RESPONDENT'S OBJECTIONS, IN PART, AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Petitioner Robert Grimes, a prisoner confined in the Texas Department of Criminal Justice, Correctional Institutions Division, brought this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The court ordered that this matter be referred to the Honorable Keith F. Giblin, United States Magistrate Judge, for consideration pursuant to applicable laws and orders of this court. The Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge. The Magistrate Judge recommends denying the petition.
The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record and the pleadings. Respondent filed objections to the Magistrate Judge's Report and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b). Respondent argues that the magistrate judge should have found that the petition was barred by the statute of limitations. Petitioner's claim regarding the enhancement paragraphs of the indictment arose in 2009, at the time he pled guilty and was placed on deferred adjudication. Thus, respondent correctly asserts that the claim is barred by limitations. However, petitioner's other claims arose at the time his guilty plea was adjudicated in 2011, not at the time he pled guilty. Those claims are not barred by limitations, and the magistrate judge did not err by addressing the merits of those claims.
In this case, the 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 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 (5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that substantial showing, the petitioner 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; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). If the petition was denied on procedural grounds, the petitioner must show that jurists of reason would find it debatable: (1) whether the petition raises a valid claim of the denial of a constitutional right, and (2) whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484; Elizalde, 362 F.3d at 328. Any doubt regarding whether to grant a certificate of appealability is 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).
Here, the petitioner has not shown that any of the issues raised by his claims are subject to debate among jurists of reason, or that a procedural ruling was incorrect. In addition, 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 a certificate of appealability.
ORDER
Accordingly, respondent's objections are OVERRULED, in part, and GRANTED, in part. Petitioner's claim concerning the sentence enhancement paragraphs in the indictment is DISMISSED as barred by the statute of limitations. In all other respects, 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 this Order. A certificate of appealability will not be issued.
So ORDERED and SIGNED this 30 day of July, 2014.
/s/_________
Ron Clark, United States District Judge