United States District Court, E.D. Texas, Texarkana Division
W. SCHROEDER III, UNITED STATES DISTRICT JUDGE
Billy Bandrate Taylor, a prisoner confined at the Telford
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
recommending that the petition be dismissed without prejudice
as a successive petition filed without authorization from the
United States Court of Appeals for the Fifth Circuit. Docket
petitioner filed objections to the Report and Recommendation.
Docket No. 6. The Court now conducts a de novo
review of the objections in relation to the pleadings and the
applicable law. See FED. R. CIV. P. 72(b).
petitioner contends that this Court should review the merits
of his constitutional claims because his attorney admitted in
an affidavit to providing ineffective assistance of counsel.
Docket No. 6 at 1. In particular, the petitioner argues that
he should not have to obtain an order authorizing a
successive petition from the Fifth Circuit because his
attorney's affidavit is newly discovered evidence of
constitutional violations. Id. at 2.
petitioner's attorney affidavit is not a newly discovered
fact permitting a successive petition under 28 U.S.C. §
2244(b)(2). See Garcia v. Quarterman, 573 F.3d 214,
221-22 (5th Cir. 2009) (contrasting proper petition with
“claims based on a factual predicate”
and improper petitions “based on newly discovered
evidence”). Accordingly, the petitioner was
required to obtain authorization from the Fifth Circuit to
file his second petition. See § 2244(b)(3).
the petitioner has not received authorization from the Fifth
Circuit to file a successive petition, this Court may not
consider the merits of the petition. See 28 U.S.C.
§ 2244(b); Burton v. Stewart, 549 U.S. 147, 152
(2007) (holding that the District Court did not have
jurisdiction to consider a second or successive habeas
petition filed without authorization from the Court of
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 petitioner must 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). The petitioner need not establish that he
should prevail on the merits. See Slack, 529 U.S. at
483-84. 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. Id.; see also 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. Second, the
petitioner's factual or legal questions are not novel and
have been consistently resolved against him. Third, the
questions presented are not worthy of encouragement to
proceed further. Accordingly, Petitioner has failed to make a
sufficient showing to merit the issuance of a certificate of
it is ORDERED that the petitioner's
objections (Docket No. 6) 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