Armentor v. Director - Texas Department of Criminal Justice, Correctional Institutions Division, No. 1:2008cv00887 - Document 34 (E.D. Tex. 2010)
Court Description: ORDER ADOPTING REPORT AND RECOMMENDATIONS as to 31 Report and Recommendations. The court finds that Petitioner's objections are without merit and are OVERRULED. A final judgment will be entered in this case in accordance with the magistrate judge's recommendations. Signed by Judge Marcia A. Crone on 12/16/10. (dlc, )
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Armentor v. Director - Texas Department of Criminal Justice, Correctional Institutions Division UNITED STATES DISTRICT COURT LUKE ARMENTOR, Petitioner, versus DIRECTOR, TDCJ-CID, Respondent. Doc. 34 EASTERN DISTRICT OF TEXAS § § § § § § § § § CIVIL ACTION NO. 1:08CV-887 MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Petitioner, Luke Armentor, an inmate currently confined at the Mark Stiles Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, 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 Keith F. Giblin, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The magistrate judge recommends petitioner’s claim 4 relating to ineffective assistance of counsel on appeal be denied as unexhausted and procedurally barred and, alternatively, as lacking in merit, and petitioner’s writ for habeas corpus be dismissed. The court has received and considered the Report and Recommendation of United States Magistrate Judge filed pursuant to such referral, along with the record, and pleadings. 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). After careful consideration, the court finds that petitioner’s objections are without merit. As recited in the magistrate judge’s report, petitioner’s claim of ineffective assistance of counsel Dockets.Justia.com on appeal is unexhausted and procedurally barred and, alternatively, is lacking in merit as petitioner has failed to identify a non-frivolous issue for his appeal or show prejudice. ORDER Accordingly, the objections of the petitioner 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 recommendations. In addition, 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). 2 In this case, the petitioner has not shown that the issues of concern are subject to debate among jurists of reason or worthy of encouragement to proceed further. As a result, a certificate of appealability shall not issue in this matter. . SIGNED at Beaumont, Texas, this 7th day of September, 2004. SIGNED at Beaumont, Texas, this 16th day of December, 2010. ________________________________________ MARCIA A. CRONE UNITED STATES DISTRICT JUDGE 3
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