Kendall v. Garza

• Court: District Court, E.D. Texas
• Decided: April 28, 2022
• Docket: 1:21-cv-00568
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TRACY LEE KENDALL, § § Petitioner, § § versus § CIVIL ACTION NO. 1:21-CV-568 § DIRECTOR, TDCJ-CID, § § Respondent. § ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Petitioner Tracy Lee Kendall, a prisoner confined at the Stiles Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), 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 Christine L. Stetson, 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. The magistrate judge recommends denying the Petition. 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 magistrate judge’s Report and Recommendation. 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. Petitioner’s claims concerning the prison disciplinary conviction are not cognizable in a habeas petition because the disciplinary action did not result in sanctions that impose upon a liberty interest. Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Petitioner also raised claims of retaliation. Because the retaliation claims do not involve the fact or duration of his confinement, they are not cognizable in a habeas petition. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Cook v. TDCJ Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir. 1994).

If Petitioner wishes to pursue his retaliation claims, he may do so by filing a civil rights action in the appropriate district court. In this case, 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 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, 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. Slack, 529 U.S. at 483-84. If the petition was denied on procedural grounds, Petitioner must show that jurists of reason would find it debatable: (1) whether the petition raises a valid claim of the denial of a constitutional right, and (2) whether the district court was correct in its procedural ruling. Id. at 484; Elizalde, 362 F.3d at 328. Any

doubt regarding whether to grant a certificate of appealability is resolved in favor of Petitioner,

2 and the severity of the penalty may be considered in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (Sth Cir. 2000). Here, Petitioner has not shown that any of the issues raised by his claims are subject to debate among jurists of reason, or that the procedural ruling was incorrect. Therefore, Petitioner has failed to make a sufficient showing to merit the issuance of a certificate of appealability. ORDER Accordingly, Petitioner’s objections (417) are OVERRULED. The findings of fact and conclusions of law of the magistrate judge are correct, and the report of the magistrate judge (#12) is 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.

Signed this date Apr 28, 2022

MARCIA A. CRONE UNITED STATES DISTRICT JUDGE