Opinion
Civil Action 9:22-CV-203
12-18-2023
JOHN DAVID ODEN, Petitioner, v. DIRECTOR, TDCJ-ID, Respondent.
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
MARCIA A. CRONE UNITED STATES DISTRICT JUDGE.
John David Oden, proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court previously referred this matter to the Honorable Zack Hawthorn, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of the court. The magistrate judge has submitted a Report and Recommendation of United States Magistrate Judge recommending that a motion to dismiss should be granted and this petition should be dismissed as barred by the applicable statute of limitations. To date, the parties have not filed objections to the Report and Recommendation.
The court has received the Report and Recommendation of United States Magistrate Judge, along with the record, pleadings, and all available evidence. After careful review, the court finds that the findings of fact and conclusions of law set forth in the Report are correct.
Accordingly, the Report and Recommendation (#14) is ADOPTED. The motion to dismiss (#7) is GRANTED. A final judgment will be entered dismissing the petition.
Furthermore, petitioner is not entitled to the issuance of a certificate of appealability. An appeal from a final judgment denying habeas relief may not proceed unless a certificate of appealability is issued. 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 raised in the petition 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).
Petitioner has not shown that the issue of whether this petition is barred by limitations 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. Thus, a certificate of appealability will not be issued.