IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

CHAD EDWARD JOHNSON §

VS. § CIVIL ACTION NO. 1:23-CV-288

DIRECTOR, TDCJ-CID §

ORDER ADOPTING THE MAGISTRATE

JUDGE’S REPORT AND RECOMMENDATION

Petitioner Chad Edward Johnson, a prisoner confined at the Clemens Unit of 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 referred this matter to the Honorable Zack Hawthorn, United States Magistrate

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

On August 28, 2023, the magistrate judge recommended dismissing the petition without prejudice

pursuant to Federal Rule of Civil Procedure 41(b). Proper notice was given to Petitioner at his last

known address. See FED.R.CIV. P. 5(b)(2)(C). To date, the parties have not filed objections to the

report.

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

Magistrate Judge pursuant to such referral, along with the record, pleadings and all available

evidence. After careful review, the Court finds that the findings of fact and conclusions of law of

the United States Magistrate Judge are correct. 

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ORDER

Accordingly, the findings of fact and conclusions of law of the magistrate judge are correct,

and the report of the magistrate judge [Dkt. 8] is ADOPTED. A final judgment will be entered in

this case in accordance with the magistrate judge’s recommendation.

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 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, the 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. See Slack, 529 U.S. at 483-84; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.

2009). If the petition was denied on procedural grounds, the 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. Slack, 529

U.S. at 484; Elizalde, 362 F.3d at 328. Any doubt regarding whether to grant a certificate of

appealability is 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).

2

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Petitioner has not shown that any of the issues raised by his claims are subject to debate

among jurists of reason, or that a procedural ruling was incorrect. In addition, the questions

presented are not worthy of encouragement to proceed further. Thus, Petitioner has failed to make

a sufficient showing to merit the issuance of a certificate of appealability.

3

____________________________

Michael J. Truncale

United States District Judge SIGNED this 17th day of October, 2023.

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