Bourge v. Herbert et al

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS 16 . Philip Bourge's petition for writ of h/c is DISMISSED W/PREJ. The Court will not issue a certificate of appealability.. Signed by Chief Judge Sarah S. Vance on 2/25/11.(bbc, )

Bourge v. Prince et al

Doc. 18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA PHILIP BOURGE VERSUS HOWARD PRINCE, ET AL. CIVIL ACTION NO: 07-8813 SECTION: R(3)

ORDER The Court, finding that as of this date neither party has filed any objections to the Magistrate Judge's Report and Recommendations,1 hereby approves the Report and adopts it as its opinion. Furthermore, Rule 11 of the Rules Governing Section 2254 Proceedings provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Before entering the final order, the

court may direct the parties to submit arguments on whether a certificate should issue." Rules Governing Section 2254

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(R. Doc. 16.)

Dockets.Justia.com

Proceedings, Rule 11(a).

A court may issue a certificate of

appealability only if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C.

§ 2253(c)(2); Rules Governing Section 2254 Proceedings, Rule 11(a) (noting that § 2253(c)(2) supplies the controlling standard). In Miller-El v. Cockrell, 537 U.S. 322 (2003), the

Supreme Court held that the "controlling standard" for a certificate of appealability requires the petitioner to show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented [are] `adequate to deserve encouragement to proceed further.'" Id. at 336. Bourge's motion does not satisfy these standards. A

petitioner must bring his section 2254 petition within one year of the date his conviction became final. 28 U.S.C. § 2244(d).

Bourge allowed substantially more than one year to lapse after his conviction became final and his state post-conviction proceedings had been resolved before filing his federal petition for habeas corpus relief. Thus, his federal habeas corpus

petition is time-barred, and the issue would not engender debate among reasonable jurists.

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Accordingly, Philip Bourge's petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE. of appealability. The Court will not issue a certificate

New Orleans, Louisiana, this 25th day of February, 2011. __

_________________________________ SARAH S. VANCE UNITED STATES DISTRICT JUDGE

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