UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS RANDY JAMES LEWIS, JR., § § Petitioner, § § versus § CIVIL ACTION NO. 1:18-CV-571 § DIRECTOR, TDCJ-CID, § § Respondent. § MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Petitioner Randy James Lewis, Jr., an inmate confined at the Clemens Unit, proceeding pro se, brought this petition for writ of habeas corpus pursuant to

. 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. The magistrate judge recommends that the petition be dismissed as barred by limitations. 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 and an amended petition. The court has conducted a de novo review of the objections and amended petition in relation to the other pleadings and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes petitioner’s objections are without merit. In his objections, petitioner asserts he is actually innocent of the offense. In McQuiggin v. Perkins,

(2013), the Supreme Court resolved a split among circuit courts by holding that a habeas petitioner can overcome the expiration of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) statute of limitations by making a convincing showing of actual innocence. McQuiggin,

(referencing

(d)(1)). The Court held that “actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar ... or ... expiration of the statute of limitations.”

However, to utilize the court-created gateway, a petitioner is required to produce new evidence sufficient to persuade the district court that “no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt” when attempting to overcome the expiration of the AEDPA statute of limitations by showing actual innocence. McQuiggin,

(quoting Schlup v. Delo,

,

(1995)). McQuiggin also held that an unjustifiable delay on the part of a habeas petitioner, while not to be counted as “an absolute barrier to relief,” should still be considered as a “factor in determining whether actual innocence has been reliably shown.”

Here, petitioner is attempting to raise a freestanding claim of actual innocence, which is not a ground for federal habeas relief. Petitioner has presented no newly-discovered evidence that would have resulted in a different decision by the trial court, nor has he explained the unjustifiable delay in this case. Therefore, petitioner’s objections should be overruled. Accordingly, the petition should be dismissed as barred by limitations. Additionally, the 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

; 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,

(2000); Elizalde v. Dretke,

(5th Cir. 2004); see also Barefoot v. Estelle,

(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,

. Any doubt regarding whether to grant a certificate of appealability is resolved in favor of the petitioner, and 2 the severity of the penalty may be considered in making this determination. See Miller v. Johnson,

(Sth Cir.), cert. denied,

(2000). Here, the 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 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, the 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. 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.

SIGNED at Beaumont, Texas, this 19th day of February, 2020.

PN □□□ Orne. MARCIAA. CRONE UNITED STATES DISTRICT JUDGE