United States District Court, E.D. Texas, Lufkin Division
ORDER OVERRULING OBJECTIONS AND ADOPTING THE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
CLARK, SENIOR DISTRICT JUDGE.
Roger Lavoy Dodd, an inmate confined at the Pack Unit of the
Texas Department of Criminal Justice, Correctional
Institutions Division, proceeding pro se, brought
this petition for writ of habeas corpus pursuant to 28 U.S.C.
court referred this matter to the Honorable Keith F. Giblin,
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 barred by limitations.
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.
Petitioner filed objections to the Report and Recommendation.
This requires a de novo review of the objections in
relation to the pleadings and the applicable law.
See Fed. R. Civ. P. 72(b).
careful consideration, the court concludes petitioner's
objections should be overruled. As set forth in the Report,
an out-of-time state application for writ of habeas corpus
does not revive any portion of the fully-expired limitations
period. See Villegas v. Johnson, 184 F.3d 467, 472
(5th Cir. 1999). Therefore, petitioner's state
application filed February 16, 2017 does not serve to toll
the expired limitations period for his 1990 conviction for
escape from jail in 1980. As a result, petitioner's
federal petition for writ of habeas corpus is barred by the
applicable statute of limitations.
it is noted petitioner asserts that his state application for
writ of habeas corpus regarding the conviction at issue in
this petition was dismissed because he has completed his
sentence. “[O]nce the sentence imposed for a conviction
has completely expired [at the time his petition is filed],
the collateral consequences of that conviction are not
themselves sufficient to render an individual ‘in
custody' for purposes of a habeas attack upon it.”
Maleng v. Cook, 490 U.S. 488, 492 (1989). Therefore,
petitioner cannot meet the “in custody”
requirement necessary to bring a petition regarding his 1990
conviction. Thus, this petition should be dismissed, in the
alternative, for this reason.
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 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 this case in accordance
with the Magistrate Judge's recommendations.
 To the extent petitioner complains
that his 1990 conviction was used to enhance a 2016 sentence
received in criminal cause number f1522084, petitioner has
filed a separate habeas action attacking such conviction.
See Dodd v. Director, Civil Action No. 9:17cv131
(e.d. Tex. 2017). The petition remains pending before the
court. Accordingly, any claim concerning ...