United States District Court, E.D. Texas, Texarkana Division
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
W. SCHROEDER III, UNITED STATES DISTRICT JUDGE
the Court is petitioner Doshee Swan Towery's petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254
(Docket No. 1). Petitioner is a prisoner confined at the
Estelle Unit of the Texas Department of Criminal Justice
Correctional Institutions Division.
Court ordered that this matter be referred to the Honorable
Caroline Craven, United States Magistrate Judge, for
consideration pursuant to 25 U.S.C. § 636 and the orders
of this Court. In her Report and Recommendation (Docket No.
5), the Magistrate Judge recommended that the petition be
dismissed without prejudice as a successive petition, filed
without authorization from the United States Court of Appeals
for the Fifth Circuit.
Court considered the Report and Recommendation of United
States Magistrate Judge, along with the record, pleadings and
all available evidence. The petitioner filed objections to
the Report and Recommendation (Docket No. 6). The Court has
conducted a de novo review of the objected-to
portions of the Report and Recommendation. See Fed.
R. Civ. P. 72(b).
9, 2007, petitioner was convicted of murder in Bowie County,
Texas, and he was sentenced to 50 years of imprisonment.
Petitioner previously filed a federal habeas petition
concerning this conviction. That petition raised the same
double jeopardy claim that is raised in the instant matter,
and it was denied on the merits. Towery v. Director,
Civil Action No. 5:10-CV-191 (E.D. Tex. Nov. 21, 2012).
instant action stems from petitioner's filing of a
document entitled “Motion for Relief Pursuant to
Federal Rule of Civil Procedure Rule 60(b)(4)” in the
United States District Court for the Southern District of
Texas. The Southern District construed the filing as a habeas
petition under § 2254, and transferred the case to this
Court. The Magistrate Judge recommended dismissing the §
2254 petition because the petitioner did not have
authorization from the Fifth Circuit to file a successive
petition. In his objections, the petitioner states that he
intended to file a post-judgment motion in Civil Action No.
5:10-CV-191, not a new habeas petition. Because the motion
for relief from judgment was mistakenly filed as a new case,
this petition should be DIMISSED and the motion for relief
from judgment should be filed in Civil Action No.
petitioner is not entitled to the issuance of a certificate
of appealability in this matter. 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 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).
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. Petitioner has failed to
make a sufficient showing to warrant the issuance of a
certificate of appealability.
findings of fact and conclusions of law of the Magistrate
Judge are correct, and the report of the Magistrate Judge is
ADOPTED to the extent that it recommends the petition be
DISMISSED WITHOUT PREJUDICE.
Clerk of Court is DIRECTED to file the motion for relief from
judgment (Docket No. 1) in Civil Action No. 5:10-CV-191. A
final judgment will be entered in this case in accordance