Case 5:12-cv-00065-MHS-CMC Document 32 Filed 09/19/13 Page 1 of 3 PageID #: 290
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
VS. § CIVIL ACTION NO. 5:12-CV-65
MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Cheyenne Pate, a prisoner confined in the Texas Department of Criminal Justice,
Correctional Institutions Division, brought this petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.
The Court ordered that this matter be referred to the Honorable Caroline Craven, United
States Magistrate Judge, 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 denied.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings, and all available evidence. Petitioner filed
objections to the Report and Recommendation. Petitioner contends that the magistrate judge did not
address his retaliation claim. The retaliation claim was not addressed because it was one of several
civil rights claims that were severed from this action into a new civil action.
The Court has conducted 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 concludes the
objections are without merit.
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Additionally, in this case, 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 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; Avila v. Quarterman, 560 F.3d
299, 304 (5th Cir. 2009). 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. 2000).
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. Petitioner has failed to make a sufficient showing
to merit the issuance of a certificate of appealability.
Accordingly, petitioner’s objections are OVERRULED. The findings of fact and
conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is
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ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge’s
recommendation. A certificate of appealability will not be issued.
It is SO ORDERED.. ____________________________________MICHAEL H. SCHNEIDERUNITED STATES DISTRICT JUDGESIGNED this 18th day of September, 2013.