United States District Court, E.D. Texas, Texarkana Division
MEMORANDUM ORDER OVERRULING PETITIONER'S
OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
GILSCRAP, UNITED STATES DISTRICT JUDGE
Charles Westerby, 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 pursuant to 28 U.S.C.
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 should be dismissed.
Court has received and considered the Report and
Recommendation of United States Magistrate Judge filed
pursuant to such order, along with the record, pleadings and
all available evidence. Petitioner filed objections to the
magistrate judge's 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. To the extent
petitioner's objections may be liberally interpreted as
asserting claims for malicious prosecution or a violation of
prison policy for which he seeks monetary damages, such
claims do not affect the fact or duration of confinement and
must be brought in a separate civil rights complaint.
case, it would not further the interests of justice to
construe petitioner's claims as a separate civil rights
action because, in the Fifth Circuit, there is no
freestanding malicious prosecution claim under Section 1983.
See Castellono v. Fragozo, 352 F.3d 939 (5th Cir.
2003). Further, a prison official's failure to follow
prison regulations, rules or procedures does not rise to the
level of a constitutional violation. Stanley v.
Foster, 464 F.3d 565, 569 (5th Cir. 2006); Hernandez
v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986).
Finally, allowing petitioner to prosecute this action based
on the payment of the $5.00 filing fee applicable to
petitions for writ of habeas corpus instead of the $400.00
filing fee applicable to civil actions would allow petitioner
to circumvent the filing fee requirements of the Prison
Litigation Reform Act. See 28 U.S.C. § 1915.
Accordingly, the petition should be dismissed without
prejudice to petitioner's ability to pursue such claims
by filing a separate civil action should he choose to do so.
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