United States District Court, E.D. Texas, Texarkana Division
MEMORANDUM ORDER OVERRULING PETITIONER'S
OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
W. SCHROEDER III UNITED STATES DISTRICT JUDGE.
Robert Lynn McCarver, an inmate confined at the Telford Unit
of the Texas Department of Criminal Justice, Correctional
Institutions Division, proceeding pro se, brought
this petition for writ of habeas corpus under 28 U.S.C.
§ 2254. Docket No. 1.
Court referred this matter to the Honorable Caroline M.
Craven, United States Magistrate Judge, at Texarkana, Texas,
for consideration pursuant to applicable laws and orders of
this Court. The Magistrate Judge recommends the petition for
writ of habeas corpus be dismissed as barred by limitations.
Docket No. 25 at 6.
Court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record, pleadings and all available evidence. Petitioner
filed objections to the Magistrate Judge's Report and
Recommendation. Docket No. 27. This requires a de
novo review of the objections in relation to the
pleadings and the applicable law. See Fed. R. Civ.
careful consideration, the Court concludes petitioner's
objections should be overruled. Petitioner's objections
address the merits of his grounds for review asserted in his
petition. However, the petition was recommended for dismissal
based on the one-year limitations period having expired
before the petition was filed.
regard, petitioner also argues a fundamental miscarriage of
justice would result from this Court's refusal to
consider his ineffective assistance of counsel claims because
an innocent person would remain in prison. In McQuiggin
v. Perkins, 133 S.Ct. 1924 (2013), the Supreme Court
resolved a split among circuit courts by holding that a
habeas petitioner can overcome the expiration of the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) statute of limitations by making a
convincing showing of actual innocence. McQuiggin,
133 S.Ct. at 1928 (referencing 28 U.S.C. § 2244(d)(1)).
The Court held that “actual innocence, if proved,
serves as a gateway through which a petitioner may pass
whether the impediment is a procedural bar . . . or . . .
expiration of the statute of limitations.” Id.
However, to utilize the court-created gateway, a petitioner
is required to produce new evidence sufficient to persuade
the district court that “no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable
doubt” when attempting to overcome the expiration of
the AEDPA statute of limitations by showing actual innocence.
McQuiggin, 133 S.Ct. at 1928 (quoting Schlup v.
Delo, 513 U.S. 298, 329 (1995)). McQuiggin also
held that an unjustifiable delay on the part of a habeas
petitioner, while not “an absolute barrier to relief,
” should still be considered as a “factor in
determining whether actual innocence has been reliably
petitioner does not rely on newly discovered evidence, nor
does he explain his unjustifiable delay. The evidence on
which petitioner relies was known or reasonably could have
been discovered at the time of his guilty plea. Further,
petitioner has not explained the delay of almost 16 months
after his conviction became final before he filed this
petition. Accordingly, petitioner's objections should be
is also 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).
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.
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
ADOPTED. A final judgment will be entered in