IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

JAMES ROY COOKSEY §

VS. § CIVIL ACTION NO. 1:23cv271

PORT ARTHUR POLICE DEPARTMENT §

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND

ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Petitioner James Roy Cooksey, 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 Christine L. Stetson,United States Magistrate

Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this Court. 

The magistrate judge recommends dismissing the petition without prejudice.

The Court has received and considered the Report and Recommendation of United States

Magistrate Judge filed pursuant to such order, along with the record and pleadings. Petitioner filed

objections to the magistrate judge’s Report and Recommendation. This requires 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 petitioner’s objections should be overruled. 

As set forth in the report and recommendation, petitioner is not in custody for purposes of obtaining

habeas relief. Further, all of petitioner’s claims not challenging the fact or duration of his alleged

confinement have been severed from this action. The resulting action was filed as a separate civil

rights action and is currently pending before the Court. See Cooksey v. Port Arthur Police Dep’t,

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Civil Action No. 1:23cv341 (E.D. Tex.). Accordingly, the above-styled petition should be

dismissed without prejudice.

Furthermore, 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 movant 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 movant 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 movant, and the severity of the penaltymay 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 the movant 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. Therefore, petitioner has failed to make a sufficient

showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of

appealability shall not be issued. 

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O R D E R

Accordingly, petitioner’s objections areOVERRULED. The findings of fact and conclusions

of law of the magistrate judge are correct and the report of the magistrate judge is ADOPTED. A

final judgment will be entered in this case in accordance with the magistrate judge’s

recommendations.

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____________________________

Michael J. Truncale

United States District Judge SIGNED this 18th day of October, 2023.

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