UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS 

JOHN BANOS, §

§

Petitioner, §

§

versus § CIVIL ACTION NO. 1:23-CV-305

§

DIRECTOR, TDCJ-CID, §

§

Respondent. §

ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING

THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Petitioner John Banos, a prisoner in the custody 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 claim that he was improperly denied release on

parole in December of 2020 is not cognizable in a federal habeas petition because he does not have

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a constitutionally-protected right to release on parole. Further, Petitioner’s claims are barred by

the statute of limitations. 

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,

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).

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. 

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ORDER

Accordingly, Petitioner’s objections (#12) are OVERRULED. The findings of fact and

conclusions of law of the magistrate judge are correct, and the report of the magistrate judge (#11)

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.

3

.

 ________________________________________

 MARCIA A. CRONE

 UNITED STATES DISTRICT JUDGE SIGNED at Beaumont, Texas, this 7th day of September, 2004. SIGNED at Beaumont, Texas, this 1st day of August, 2024.

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