IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION VERNON LEE LANDRY, JR. §

VS. § CIVIL ACTION NO. 1:19-CV-462 DIRECTOR, TDCJ-CID § MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Petitioner Vernon Lee Landry, Jr., a prisoner in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division, filed this Petition for Writ of Habeas Corpus pursuant to

. The court ordered that this matter be referred to the Honorable Christine L. Stetson, United States Magistrate Judge, for consideration pursuant to applicable laws and orders of this court. The magistrate judge has submitted a Report and Recommendation of United States Magistrate Judge. (Doc. #17.) The magistrate judge recommends dismissing the petition.

The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record and the pleadings. Petitioner filed Objections to the magistrate judge’s report and recommendation. (Doc. #20.) The court has conducted 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 of all the pleadings and the relevant case law, the court concludes that Petitioner’s Objections lack merit. The magistrate judge recommended dismissing the petition because it is a “mixed petition,” containing both exhausted and unexhausted claims. Rose v. Lundy,

(1982). Petitioner could have chosen to dismiss the unexhausted claims and proceed with the exhausted claims. Lundy,

. Because Petitioner did not move to dismiss the unexhausted claims, the entire Petition must be dismissed. Further, 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 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, 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,

; Avila v. Quarterman,

(5th Cir. 2009). If the petition was denied on procedural grounds, 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,

; Elizalde,

. Any doubt regarding whether to grant a certificate of appealability is resolved in favor of Petitioner, and the severity of the penalty may be considered in making this

determination. See Miller v. Johnson,

(5th Cir. 2000). Here, 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 2 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. 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. A certificate of appealability will not be issued.

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