Sellers v. Rader et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS 17 : IT IS ORDERED that petition for writ h/c is DISMISSED WITH PREJUDICE; Court will not issue certificate of appealability. Signed by Chief Judge Sarah S. Vance on 3/25/2011.(rll, )

Sellers v. Rader et al

Doc. 19

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA LAVON L. SELLERS VERSUS STEVE RADER, WARDEN ORDER Before the Court are Lavon Sellers' Petition for a Writ of Habeas Corpus1 and his objection2 to the Magistrate Judge's Report and Recommendation that the petition be dismissed with prejudice.3 The Court, having reviewed de novo the petition, the CIVIL ACTION NO: 09-6271 SECTION: R(4)

record, the applicable law, the Magistrate Judge's Report and Recommendation, and the petitioner's objection thereto, hereby approves the Magistrate Judge's Report and Recommendation 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." Rule 11(a).
1

RULES GOVERNING SECTION 2254 PROCEEDINGS,

A court may issue a certificate of appealability

R. Doc. 1. R. Doc. 18. R. Doc. 17.

2

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Dockets.Justia.com

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, 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.'" (2003). Sellers' petition is clearly time-barred, and that determination would not engender debate among reasonable jurists. Accordingly, Lavon Sellers' petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE. of appealability. New Orleans, Louisiana, this The Court will not issue a certificate 537 U.S. 322, 336

25th

day of March, 2011.

SARAH S. VANCE UNITED STATES DISTRICT JUDGE

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