Rubens v. Cain et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS 27 . IT IS ORDERED that plaintiff's petition for habeas corpus is DISMISSED WITH PREJUDICE. The Court will not issue a certificate of appealability. Signed by Judge Sarah S. Vance on 4/19/2017.(cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PETER RUBENS

CIVIL ACTION

VERSUS

NO. 14-789

BURL CAIN, WARDEN

SECTION “R” (1)

ORDER
The Court has reviewed de novo the petition for habeas corpus, the
record,

the

applicable

law,

the

Magistrate

Judge’s

Report

and

Recommendation, and the petitioner’s objections to the Magistrate Judge’s
Report and Recommendation. The Magistrate Judge’s recommended ruling
is correct, and petitioner’s objections essentially rehash his arguments before
the Magistrate Judge or are otherwise without merit. Accordingly, the Court
adopts the Magistrate Judge’s Report and Recommendation as its opinion
herein.
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

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. Petitioner has failed to meet this standard.
IT IS ORDERED that plaintiff’s petition for habeas corpus is
DISMISSED WITH PREJUDICE. The Court will not issue a certificate of
appealability.

19th
New Orleans, Louisiana, this _____ day of April, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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