Funes v. Cain et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATIONS 9 and order denying issuance of certificate of appealability. Signed by Judge Sarah S. Vance on 11/23/15.(jjs) Modified on 11/23/2015 (jjs).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARIO FUNES

CIVIL ACTION

VERSUS

NO: 15-2108

BURL CAIN, WARDEN

SECTION: R
ORDER

Plaintiff Mario Funes filed this pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The Court, having reviewed de novo the
petition,1 the defendant's response,2 the record, the applicable law, and the
Magistrate Judge's unopposed Report and Recommendation,3 hereby
approves the Report and Recommendation and adopts it as its opinion. For
the reasons stated in the Report and Recommendation, Funes's petition must
be dismissed.
Rule 11(a) 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." A court may only issue a
certificate of appealability if the petitioner makes "a substantial showing of the

1

R. Doc. 1.

2

R. Doc. 6.

3

R. Doc. 9.

denial of a constitutional right." 28 U.S.C. § 2253(c)(2). 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) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)).
The Court concludes that Funes's petition fails to satisfy this standard.
Accordingly, the Court will not issue a certificate of appealability.
For the foregoing reasons, the Court DISMISSES WITH PREJUDICE
Funes's petition for habeas corpus and DENIES a certificate of appealability.

New Orleans, Louisiana, this 23rd day of November, 2015.

________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

2