United States District Court, E.D. Texas, Texarkana Division
W. SCHROEDER III, UNITED STATES DISTRICT JUDGE
Cory Paul Ziolkowski, proceeding pro se, filed this
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The Court referred this matter to the Honorable
Caroline Craven, United States Magistrate Judge, for
consideration pursuant to 28 U.S.C. § 636(b)(1) and (3)
and the Amended Order for the Adoption of Local Rules for the
Assignment of Duties to United States Magistrate Judges.
filed the above-referenced petition for writ of habeas corpus
contesting his state court conviction (Docket No. 1). The
Court entered a Show Cause Order (Docket No. 8), and in its
answer, Respondent asserted that the petition was time-barred
(Docket No. 10). Petitioner filed a motion for summary
judgment (Docket No. 16). The Magistrate Judge issued two
separate Reports and Recommendations, first recommending the
Petitioner’s motion for summary judgment be dismissed
(Docket No. 17) and second recommending the petition for writ
of habeas corpus be denied as time-barred (Docket No. 18).
acknowledged receipt of both reports. (Docket Nos. 19, 20).
The parties have not filed objections to either report.
Accordingly, any aggrieved party is not entitled to de
novo review by the District Judge of those findings,
conclusion and recommendations, and except upon grounds of
plain error, the parties are barred from appellate review of
the unobjected to factual findings and legal conclusions
accepted and adopted by the District Court. 28 U.S.C. §
636(b)(1)(C); Douglass v. United Servs. Auto.
Assoc., 79 F.3d 1415, 1430 (5th Cir. 1995)
the Court has reviewed the pleadings in the cause and agrees
with the reports of the Magistrate Judge. See United
States v. Raddatz, 447 U.S. 667, 683 (1980)
(“[T]he statute permits the district court to give to
the magistrate’s proposed findings of fact and
recommendations ‘such weight as [their] merit commands
and the sounds discretion of the judge warrants, . . .
’ ”) (quoting Mathews v. Weber, 23 U.S.
261, 275 (1976)). There being no grounds of plain error or
manifest injustice, the Court hereby ADOPTS
the Reports and Recommendations of the Magistrate Judge
(Docket Nos. 17, 18) as the findings and conclusions of this
Court. A Final Judgment will be entered in this case in
accordance with the Magistrate Judge’s recommendations.
the Court is of the opinion petitioner is not entitled to a
certificate of appealability. An appeal from a judgment
denying post-conviction collateral relief may not proceed
unless a judge issues a certificate of appealability.
See 28 U.S.C. § 2253. The standard for 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). To make a substantial
showing, the petitioner need not establish that he would
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 should be 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.), cert.
denied, 531 U.S. 849 (2000).
case, petitioner has not shown that any of the issues would
be subject to debate among jurists of reason. The questions
presented are not worthy of encouragement to proceed further.
Therefore, the petitioner has failed to make a sufficient
showing to merit the issuance of certificate of
appealability. Accordingly, a certificate of appealability
will not be issued.
that the reports of the Magistrate Judge (Docket Nos. 17, 18)
are ADOPTED as the opinion of this court. It
that Plaintiffs motion for summary judgment is
DENIED. Further, it is
that the above-styled action is DISMISSED WITH
PREJUDICE as time-barred. Finally, it is
that any and all motions by either party not previously ruled
on are DENIED AS MOOT.