Bartholomew v. Tinson et al

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATIONS 5 . Certificate of Appealability will not be issued. Signed by Chief Judge Sarah S. Vance on 12/12/12.(jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LANCE GARRETT BARTHOLOMEW

CIVIL ACTION

VERSUS

NO: 12-2091

ORBON M. TINSON, ET AL.

SECTION: R

ORDER
Before the Court is Lance Garrett Bartholomew’s civil action
filed pursuant to 42 U.S.C. § 1983, which includes his petition
for a writ of habeas corpus.1 Also before the Court is the
Magistrate Judge's unopposed Report and Recommendation, which
suggests that Bartholomew’s § 1983 claim be dismissed with
prejudice due to the absolute immunity of defendants and that his
habeas corpus petition be dismissed without prejudice for failure
to exhaust state court remedies.2 The Court, having reviewed de
novo the petition, the applicable law, and the Magistrate Judge's
Report and Recommendation, hereby approves the Magistrate Judge's
Report and Recommendation and adopts it as its opinion.
The defendants against whom Bartholomew has filed suit under
§ 1983 are protected by the absolute immunity afforded to judges
and individuals enforcing or executing court orders. See Mays v.
Sudderth, 97 F.3d 107, 113 (5th Cir. 1996). Regarding
Bartholomew’s habeas petition, exhaustion of state court remedies
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R. Doc. 3.

2

R. Doc. 5.

is not mandated by statute in pre-trial situations. See Dickerson
v. State of Louisiana, 816 F.2d 220, 225 (5th Cir. 1987). But,
the Fifth Circuit Court of Appeals has held that a federal court
should not exercise its jurisdiction over habeas petitions if
“the issues raised in the petition may be resolved either by
trial on the merits in the state court or by other state
procedures available to the petitioner.” Id. (citing Braden v.
30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489-92
(1973)). Bartholomew indicated in his petition that a court date
has been set,3 at which time the state court will address the
charges on which Bartholomew is held. Moreover, there is no
evidence before the Court that defendant has attempted to raise
the issues in his petition through available state procedures.
Therefore, it is not appropriate for the Court to exercise
jurisdiction over Bartholomew’s habeas petition at this time.
Accordingly, Lance Garrett Bartholomew’s § 1983 claim is
DISMISSED WITH PREJUDICE, and his petition for a writ of habeas
corpus is DISMISSED WITHOUT PREJUDICE.
Further, the Court will not issue a certificate of
appealability. 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

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R. Doc. 1 at 6.
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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
28 U.S.C. § 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 matter or that the
issues presented [are] ‘adequate to deserve encouragement to
proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). 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)). Here, Bartholomew has not
made a substantial showing of the denial of a constitutional
right. Further, the issues would not engender debate among

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reasonable jurists. The Court therefore will not issue a
certificate of appealability.

New Orleans, Louisiana, this 12th day of December, 2012.
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_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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