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Jurisdiction: Texas Eastern District Court
Decision Date: 2/6/2012

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Sanders v. Dir. TDCJ-CID Sanders v. Dir. TDCJ-CID (E. D. Tex., 2012)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        JAMES WILSA SANDERS
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DIRECTOR, TDCJ-CID

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION NO. 5: 10cv183

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

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dated: February 6, 2012

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        JAMES WILSA SANDERS v. DIRECTOR, TDCJ-CID

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION NO. 5: 10cv183

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

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dated: February 6, 2012

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                James Wilsa Sanders, proceeding pro se, filed the above-styled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a prison disciplinary conviction.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Court referred this matter to the Honorable Caroline M. Craven, United States Magistrate Judge, for consideration pursuant to 28 U.S.C. § 636 and applicable orders of this court. The Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge concerning this matter. The Magistrate Judge recommends the petition be denied.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record and pleadings. No objections were filed to the 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 as the opinion of the Court. A final judgment shall be entered in accordance with the recommendation of the Magistrate Judge.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In addition, the Court is of the opinion petitioner is not entitled to a certificate of appealability. An appeal from a judgment denying federal habeas relief may not proceed unless a judge issues a certificate of appealability. See 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

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        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 demonstrate 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).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In this case, the petitioner has not shown that the issue of whether his claims are meritorious is subject to debate among jurists of reason. The factual and legal questions raised by petitioner 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 in this matter.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                ____________        DAVID FOLSOM        UNITED STATES DISTRICT JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
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