Thomas v. Tanner et al

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATIONS 8 ; accordingly, petition for writ h/c is DISMISSED WITH PREJUDICE; Court will not issue certificate of appealability. Signed by Chief Judge Sarah S. Vance on 10/24/2011.(rll, )

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

CIVIL ACTION

VERSUS

NO: 10-3013

ROBERT TANNER, WARDEN

SECTION: R

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. 8.

“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 petition does not satisfy these standards.

Thomas

may not attack his 2000 convictions either directly or
collaterally, as his sentence for those convictions has fully
expired.

He is thus no longer “in custody” as required for

subject matter jurisdiction in this Court.

Further, as noted in

the Magistrate Judge’s Report, Lackawanna Cnty. Dist. Atty. v.
Coss clearly precludes Thomas from challenging an enhanced
sentence through a Section 2254 petition on the ground that an
expired prior conviction was unconstitutionally obtained.
532 U.S. 394 (2001).

See

These issues 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.

The Court will not issue a

certificate of appealability.

New Orleans, Louisiana, this 24th day of October, 2011.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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