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King v. Director, TDCJ-CID

United States District Court, E.D. Texas, Texarkana Division

June 17, 2019

EARL KING
v.
DIRECTOR, TDCJ-CID

          MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          RODNEY GILSTRAP UNITED STATES DISTRICT JUDGE.

         Petitioner 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.

         The 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 limitations.

         The 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.

         In this 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.

         Equitable 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.

         The 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 merit.

         Additionally, 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).

         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. The petitioner has failed to make a sufficient showing to merit the issuance of a certificate of appealability.

         ORDER

         Accordingly, 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 issued.

         So ...


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