Massey v. Cain et al
Filing
17
ORDER ADOPTING REPORT AND RECOMMENDATIONS 15 . Signed by Judge Sarah S. Vance on 9/26/16.(jjs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRIAN MASSEY
CIVIL ACTION
VERSUS
NO. 14-2952
N. BURL CAIN
SECTION “R” (3)
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 there is no merit to petitioner’s objections.1 Accordingly, the
In his objections, the petitioner reasserts verbatim his original claim
that, “The Trial Court erred in denying petitioner’s claim of Denial of
Ineffective Assistance of Counsel without granting an evidentiary hearing .
. . .” R. Doc. 16 at 1. To the extent this refers to the state proceedings, it
merely rehashes the arguments made before the Magistrate Judge. If it
refers to the Magistrate Judge’s determination not to hold an evidentiary
hearing, the objection lacks merit. “Under Cullen v. Pinholster, a federal
court in a § 2254 proceeding is not permitted to consider evidence that was
not presented to the state court if it is determined on the basis of the state
court record that the state court’s decision was not contrary to and did not
involve ‘an unreasonable application of[ ] clearly established Federal law,’
and was not ‘based on an unreasonable determination of the facts.’” Allen v.
Vannoy, No. 14-70009, 2016 WL 4254375, at *14 (5th Cir. Aug. 11, 2016)
(quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)).
1
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 these standards.
2
IT IS ORDERED that plaintiff’s petition for habeas corpus is
DISMISSED WITH PREJUDICE. The Court will not issue a certificate of
appealability.
26th
New Orleans, Louisiana, this _____ day of September, 2016.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?