Thomas v. Tanner et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS 19 ; accordingly, Thomas's petition for writ h/c is DISMISSED WITH PREJUDICE as time-barred. Court will not issue certificate of appealability. Signed by Chief Judge Sarah S. Vance on 9/15/2011.(rll, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES THOMAS, SR.

CIVIL ACTION

VERSUS

NO: 10-1795

ROBERT TANNER, WARDEN

SECTION: R(6)

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.
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 PROCEEDINGS, Rule 11(a).

A court may only issue a certificate of appealability 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
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R. Doc. 19.

“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).

537 U.S. 322, 336

With respect to claims denied on procedural grounds, the

petitioner must make a two-part showing: (1) that “jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling,” and (2) that “jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right.”

Johnson v.

Quarterman, 483 F.3d 278, 284 (5th Cir. 2007) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).
Thomas’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).

Because there is no basis for applying either additional
statutory tolling or equitable tolling to Thomas’s federal habeas
petition, the petitioner allowed substantially more than one year
to lapse from the date his conviction became final without filing
a timely 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,
James Thomas’s petition for a writ of habeas corpus is
DISMISSED WITH PREJUDICE as time-barred.

The Court will not

issue a certificate of appealability.

New Orleans, Louisiana, this 15th day of September, 2011.
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_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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