Kelly v. Louisiana State et al
Filing
31
ORDER ADOPTING REPORT AND RECOMMENDATIONS 30 . For the reasons stated in the Report and Recommendation, petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, IT IS ORDERED that the petition for habeas corpus is DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 11/09/2018.(am)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SAMUEL KELLY
CIVIL ACTION
VERSUS
NO. 14-2282
LOUISIANA STATE ET AL.
SECTION “R” (4)
ORDER
The Court has reviewed de novo the original petition for habeas corpus, 1
petitioner’s supplemental briefing, 2 the record, the applicable law, and the
Magistrate Judge’s unopposed Report and Recommendation. 3 The Magistrate
Judge correctly determined that the petition is time-barred under the
Antiterrorism and Effective Death Penalty Act. She also correctly determined that
the Dunbar affidavit does not change the start date of the limitations period under
28 U.S.C. § 2244(d)(1)(D) because petitioner could have discovered the
information contained in the affidavit several years before its execution.
Accordingly,
the
Court
adopts
the
Magistrate
Judge’s
Report
and
Recommendation as its opinion herein.
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
1
2
3
R. Doc. 3.
R. Doc. 26; R. Doc. 29.
R. Doc. 30.
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). 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.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
For the reasons stated by the Magistrate Judge, the petitioner has not made
a substantial showing of the denial of a constitutional right.
Accordingly, IT IS ORDERED that the petition for habeas corpus is
DISMISSED WITH PREJUDICE.
The Court will not issue a certificate of
appealability.
9th
New Orleans, Louisiana, this _____ day of November, 2018.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
2
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