UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS 

PHILMORE CLINES, JR., §

§

Petitioner, §

§

versus § CIVIL ACTION NO. 9:24-CV-23

§

DIRECTOR, TDCJ-ID, §

§

Respondent. §

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING 

THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Philmore Clines, Jr., an inmate confined within the Texas Department of Criminal Justice,

Correctional Institutions Division, 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 the petition be dismissed

without prejudice. The recommendation was based on the conclusion that petitioner had not

exhausted his state court remedies.

The court has received 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. 

The court has conducted a de novo review of petitioner’s objections in relation to the

pleadings and the applicable law. After careful consideration, the court is of the opinion the

objections are without merit. In his objections, petitioner does not assert he exhausted his state

court remedies prior to filing his federal petition. As a result, the magistrate judge correctly

concluded the petition should be dismissed.

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ORDER

Accordingly, the objections filed by petitioner (#3) are OVERRULED. The findings of

fact and conclusions of law of the magistrate judge are correct and the report of the magistrate

judge (#2) is ADOPTED. 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).

In this case, the petitioner has not shown that the issue of whether he previously exhausted

his state court remedies 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. Petitioner has failed to

make a sufficient showing to merit the issuance of a certificate of appealability. Thus, a certificate

of appealability will not be issued. 

2

________________________________________

MARCIA A. CRONE

UNITED STATES DISTRICT JUDGE SIGNED at Beaumont, Texas, this 26th day of February, 2024.

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