United States District Court, E.D. Texas, Beaumont Division
JOSEPH LATIGUE, JR.
ORDER OVERRULING PETITIONER'S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
Clark, United States District Judge
Joseph Latigue, Jr., a prisoner confined at the Polunsky Unit
of the Texas Department of Criminal Justice, Correctional
Institutions Division, brought this petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
court ordered that this matter be referred to the Honorable
Zack Hawthorn, 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.
court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record and the pleadings. The petitioner filed objections
to the Magistrate Judge's Report and Recommendation.
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). After careful
consideration of the pleadings and the relevant case law, the
court concludes that the petitioner's objections lack
merit for the reasons stated in the Magistrate Judge's
Report and Recommendation.
petitioner contends his attorney provided ineffective
assistance at the parole revocation hearing and on appeal.
The state courts rejected these claims during the state
habeas proceedings. The petitioner has not shown by clear and
convincing evidence that the state courts' factual
findings regarding these claims were incorrect. See
28 U.S.C. § 2254(e)(1). Further, the petitioner has not
shown that the state court's application of
Strickland v. Washington, 466 U.S. 668 (1984), was
unreasonable. Therefore, the petitioner is not entitled to
relief on his claims of ineffective assistance of counsel.
Harrington v. Richter, 526 U.S. 86 (2011).
petitioner claims that his pleas of “true” to two
administrative violations were involuntary due to the
ineffective assistance of counsel. The state court's
rejection of this claim is not contrary to, and does not
involve an unreasonable application of, clearly established
federal law. Nor was the state court's decision based on
an unreasonable determination of the facts in light of the
the petitioner claims that his ninety-nine year sentence
violated the Eighth Amendment prohibition against cruel and
unusual punishment. In light of the petitioner's criminal
history, the court cannot conclude that the petitioner's
sentence was disproportionate, such that it violated the
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).
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
the petitioner's objections (document no. 17) are
OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct, and
the report of the Magistrate Judge (document no. 12) is
ADOPTED. A final judgment will be entered in
this case in accordance with the Magistrate Judge's
recommendation. A certificate of appealability will not be