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Jurisdiction: Texas Eastern District Court
Decision Date: 2/6/2018

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Duran v. Dir. Duran v. Dir., TDCJ-CID (E. D. Tex., 2018)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CARLOS ALBERTO DURAN
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DIRECTOR, TDCJ-CID

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION NO. 9: 17cv127

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        February 6, 2018

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CARLOS ALBERTO DURAN v. DIRECTOR, TDCJ-CID

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION NO. 9: 17cv127

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        February 6, 2018

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Petitioner Carlos Alberto Duran, an inmate confined at the Polunsky Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se brought 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 that the petition be dismissed without prejudice.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                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. No objections to the Report and Recommendation of United States Magistrate Judge were filed by the parties.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Furthermore, 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

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        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. 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. ), cert. denied 531 U.S. 849 (2000).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Here, the petitioner has not shown that any of the issues raised by his claims are subject to debate among jurists of reason. The factual and legal questions advanced by the petitioner are not novel and have been consistently resolved adversely to his position. In addition, 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 a certificate of appealability. Accordingly, a certificate of appealability shall not be issued.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ORDER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Accordingly, 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.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                So Ordered and Signed        Feb 6 2018

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/_________        Ron Clark, United States District Judge

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Notes

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