The opinion
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS
BAKARI ABDUL BROWN, §
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Petitioner, §
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versus § CIVIL ACTION NO. 1:20-CV-512
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DIRECTOR, TDCJ-CID, §
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Respondent. §
MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Bakari Abdul Borwn, an inmate currently confined at the Estelle Unit with the
Texas Department of Criminal Justice, Correctional Institution 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 Christine Stetson, United States Magistrate Judge, at Beaumont, Texas,
for consideration pursuant to applicable laws and orders of this court. The magistrate judge
recommends denying and dismissing the petition (#23).
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 (#26).
The court has conducted a de novo review of the objections in relations to the pleadings
and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court
concludes petitioner’s objections are without merit.
Petitioner has failed to rebut the presumption of correctness afforded to the factual findings
of the state court by clear and convincing evidence. Further, Petitioner has failed to show either
the state court adjudication was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States or that the state
court adjudication resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding. Therefore, the petition
should be denied and dismissed.
ORDER
Accordingly, Petitioner’s objections are OVERRULED. 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 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 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. See Slack, 529 U.S. at 483-84. Any doubt regarding whether
to grant a certificate of appealability is resolved in favor of Petitioner, and the severity of the
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penalty may be considered in making this determination. See Miller v. Johnson, 200 F.3d 274,
280-81 (Sth 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 Petitioner 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. Thus, Petitioner has failed to make
a sufficient showing to merit the issuance of a certificate of appealability. Therefore, a certificate
of appealability shall not be issued.
SIGNED at Beaumont, Texas, this 27th day of February, 2024.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE