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Jurisdiction: Texas Eastern District Court
Decision Date: 11/19/2011

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Thomas v. Dir. TDCJ-CID Thomas v. Dir. TDCJ-CID (E. D. Tex., 2011)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        OSCAR NED THOMAS, Petitioner,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DIRECTOR, TDCJ-CID, Respondent.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION NO. 1: 11-CV-366

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dated: November 19, 2011

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        OSCAR NED THOMAS, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION NO. 1: 11-CV-366

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dated: November 19, 2011

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MEMORANDUM ORDER ADOPTING
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Petitioner Oscar Ned Thomas, 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 has submitted a Report and Recommendation of United States Magistrate Judge recommending the petition be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The court has received the Report and Recommendation of United States Magistrate Judge, along with the record, pleadings, and all available evidence. No objections were filed to the magistrate judge's Report and Recommendation.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        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 dismissing the petition.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In addition, the court is of the opinion petitioner is not entitled to a certificate of appealability. An appeal from a judgment denying habeas 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. 2000).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Here, the petitioner has not shown that the issue of whether his petition should be dismissed for want of prosecution is subject to debate among jurists of reason. The factual and legal questions have been consistently resolved adversely to his position and the questions presented are not worthy of encouragement to proceed further. As a result, a certificate of appealability shall not issue.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                SIGNED at Beaumont, Texas, this 19th day of November, 2011.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                MARCIA A. CRONE        UNITED STATES DISTRICT JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Notes

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