CIVIL ACTION NO. 5:16cv164
MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Petitioner Ron Wesley Hayes, an inmate confined at the Bowie County Correctional Center in Texarkana, Texas, 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 Caroline M. Craven, United States Magistrate Judge, at Texarkana, Texas, for consideration pursuant to applicable laws and orders of this Court. The Magistrate Judge recommends the petition should be dismissed based on Petitioner's failure to exhaust state habeas remedies.
The Court has received and considered the Report and Recommendation of United States Magistrate Judge filed pursuant to such referral, along with the record, pleadings and all available evidence. No objections to the Report and Recommendation of United States Magistrate Judge were filed by the parties.
The Magistrate Judge's Report and Recommendation was mailed to the address Petitioner provided the Court but was returned as undeliverable because Petitioner is no longer there. Docket No. 12. Petitioner is a pro se litigant, and under the Local Rules of the Eastern District of Texas, pro se litigants must provide the Court with a physical address and are "responsible for keeping the clerk advised in writing of the current physical address." Local Rule CV-11(d). Petitioner was advised of this rule in Order Regarding In Forma Pauperis Status. Docket. No. 2. The Order stated "Petitioner shall notify the Court of any change of address by filing a written notice of change of address with the Clerk. Failure to file such a notice may result in the case being dismissed for want of prosecution." To date, Petitioner has not updated his address with the Court or filed objections to the Report.
Because Petitioner did not file objections to the Report and Recommendation, this Court reviews the Magistrate Judge's findings of fact and conclusions of law for clear error. Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988). This Court agrees with the Magistrate Judge that the petition should be dismissed for failing to exhaust state habeas remedies.
Additionally, the Court finds that Petitioner is not entitled to 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 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, 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 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. Thus, Petitioner has failed to make a sufficient showing to merit the issuance of a certificate of appealability. Therefore, a certificate of appealability shall not be issued. Accordingly, the Court hereby ADOPTS the Report of the United States Magistrate Judge as that of this Court. It is hereby ORDERED that this petition is DISMISSED without prejudice.
SIGNED this 17th day of July, 2017.
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE