United States District Court, E.D. Texas, Texarkana Division
MEMORANDUM ORDER OVERRULING PETITIONER'S
OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
GILSTRAP UNITED STATES DISTRICT JUDGE.
Earl King, a prisoner confined at the Smith 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
Caroline Craven, 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 recommending
that the petition be dismissed as barred by the statute of
Court has received and 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.
case, the statute of limitations expired on July 8, 2016,
nearly two years before the petitioner filed his federal
petition. The petitioner does not object to the magistrate
judge's finding that the petition is barred by the
statute of limitations, but he argues that he is entitled to
equitable tolling because he did not receive a copy of his
attorney's file until June 27, 2016.
tolling is available only if the petitioner diligently
pursued his rights and extraordinary circumstances prevented
timely filing. Holland v. Florida, 560 U.S. 631, 649
(2010). The petitioner is not entitled to equitable tolling
because he did not diligently pursue his rights. After he
received the documents from his lawyer, the petitioner waited
6 months before he filed a motion for DNA testing. When that
motion was denied, the petitioner waited 6 months to file his
state application for habeas. This petition was not filed
until 3 months after the petitioner's state application
was denied. Due to this pattern of delay, equitable tolling
is not warranted.
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, the Court concludes the objections are without
in this 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).
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.
The petitioner has failed to make a sufficient showing to
merit the issuance of a certificate of appealability.
the 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
recommendation. A certificate of appealability will not be