Shank v. Cain et al
Filing
28
OPINION ADOPTING REPORT AND RECOMMENDATIONS 23 . Signed by Judge Ivan L.R. Lemelle.(ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHRISTOPHER S. SHANK
CIVIL ACTION
VERSUS
NO: 15-4530
N. BURL CAIN, WARDEN
SECTION: "B"(4)
OPINION
This matter was initially referred to the Magistrate Judge to
conduct an evidentiary hearing if necessary and submit proposed
findings of fact and a recommendation. On March 3, 2016, the
Magistrate
Judge
issued
a
Report
and
Recommendations
that
Petitioner Christopher Shank’s application for federal habeas
corpus relief be dismissed as time-barred. Rec. Doc. 23. Petitioner
filed written objections to the Report and Recommendations on March
23, 2016. Rec. Doc. 24. He was granted leave on April 12, 2016 to
amend his objections to include proof of receipt of the Report and
Recommendations to show his objections were timely filed.
I.
FACTUAL BACKGROUND:1
On August 9, 2003, Petitioner was living with the D family
and came home during the early morning hours. Mr. D woke up to let
Petitioner into the house and then went back to sleep. About an
hour later, Mr. D was woken up by his youngest daughter who said
1
The facts were taken from the published opinion of the Louisiana Court of
Appeals for the Fifth Circuit. State v. Shank, 924 So.2d 316, 319-20 (La.
App. 5th Cir. 2006). Under Louisiana law, the victim and her family are
identified by initials to protect the victim’s identity. See, La. Rev. Stat.
Ann. § 46:1844(W)(3). The Court will continue to do so in this memorandum.
1
that his godson, who was also staying with him, had wet the bed.
When he got up he noticed that his other daughter, D.D., was not
in her room. Mr. D walked by Petitioner’s room and through a crack
in the door noticed Petitioner was under the covers “humping.”
Mr. D, half-asleep and thinking Petitioner had a girlfriend over,
went to find D.D. but she was not in bed with his wife. He returned
to Petitioner’s room and saw Petitioner lying on his side holding
D.D., who had no underwear on. Mr. D told D.D. to go back to her
room and Mr. D and Petitioner had an altercation until Petitioner
took off in his truck.
Mrs. D examined D.D.’s vagina and found blood and a scrape.
D.D. told her mother that Petitioner “[rocked on her] . . . like
grown-ups
do.”
interviewed
Mr.
D.D.’s
D.
called
parents,
the
and
police,
collected
who
arrived,
evidence.
and
D.D.’s
underwear was never found but her nightgown and Petitioner’s
bedding tested negative for seminal fluids. D.D. was taken to
Children’s Hospital where she was examined and found to have
injuries consistent with rape.
While in custody, ignoring repeated warnings to not discuss
his case, Petitioner told an officer he was on heroin, OxyContin,
and
three
“Xanbars,”
and
believed
he
was
in
bed
with
his
girlfriend, not D.D. A confidential informant told a detective
that Petitioner admitted to raping D.D. and hiding her underwear.
2
II.
PROCEDURAL BACKGROUND:
Petitioner was indicted for one count of aggravated rape of
a juvenile on October 9, 2003, and entered a plea of not guilty to
the charge on October 20, 2003. (St. Rec. Vol. 1 of 9, Minute
Entry, 10/20/03). Petitioner was tried by a jury on October 27 and
28, 2004 in the 24th Judicial District Court for the Parish of
Jefferson, and was found guilty. (St. Rec. Vol. 1 of 9, Trial
Minutes, 10/27/04). On December 8, 2004, the trial court sentenced
Petitioner to life in prison without benefit of parole, probation,
or
suspension
of
sentence;
he
is
currently
incarcerated
in
Louisiana State Penitentiary (“LSP”). (St. Rec. Vol. 1 of 9,
Sentencing Minutes, 12/8/04; St. Rec. Vol. 3 of 9, Sentencing
Transcript, 12/8/04).
Petitioner’s appointed counsel filed a direct appeal and
asserted two errors: (1) the trial court erred in admitting
Petitioner’s
statements
at
trial;
and
(2)
the
evidence
was
insufficient to support the verdict. Petitioner also submitted a
supplemental memorandum in which he asserted additional arguments
to support the assertion of two errors. On February 14, 2006, the
Louisiana Court of Appeals for the Fifth Circuit affirmed the
conviction and sentence. The state appellate court found the first
claimed error, regarding admittance of statements, was partly
without merit and partly procedurally barred, while the second
3
claim was without merit entirely. State v. Shank, 924 So.2d 316,
316-20 (La. App. 5th Cir. 2006).
The case was remanded to the trial court to advise Petitioner
of the prescriptive periods for seeking post-conviction relief and
how to register as a sex offender. Id. The trial court complied
with the appellate court’s directive on March 2, 2006. (St. Rec.
Vol. 4 of 9, Notice of Prescriptive Period, 3/2/06). On November
17, 2006, the Louisiana State Supreme Court denied Petitioner’s
related writ application without stated reasons. Id. at 531. His
conviction became final under federal law on February 15, 2007,
ninety days later, because he did not file a writ application with
the Supreme Court of the United States.
On February 11, 2009, Petitioner submitted a state postconviction relief application to the 24th Judicial District Court
in which he stated eleven grounds for relief:
(1)
The State of Louisiana withheld favorable evidence in
the
original
photographs
from
D.D.’s
initial
examination;
(2)
The State’s disclosure failed to volunteer exculpatory
evidence;
(3)
The State withheld critical, physical evidence at trial;
(4)
The State elicited false testimony from Mrs. D;
(5)
The State admitted a false confession through Russell
Buras;
(6)
The State allowed
uncorrected;
other
4
false
testimony
to
go
(7)
Petitioner was denied the right to cross-examine Officer
Scott Guillory;
(8)
The State knowingly violated the principles of Brady;
(9)
The trial court exceeded its jurisdiction on a defective
indictment;
(10) The trial court transcripts were altered on appeal; and
(11) Petitioner was denied effective assistance of counsel
under the Sixth Amendment.
The trial court denied Petitioner’s state post-conviction
relief application on March 2, 2009, stating it was untimely filed
under La. Code Crim. P. art. 930.8. (St. Rec. Vol. 5 of 9, Trial
Court Order, 3/2/09). The Louisiana Fifth Circuit found no error
in the trial court’s ruling and denied Petitioner’s related writ
application on May 27, 2009. (St. Rec. Vol. 8 of 9, 5th Cir. Order,
09-KH-388, 5/27/2009; 5th Cir. Writ Application, 09-KH-338, 5/5/09
(dated
4/28/09)).
The
Louisiana
Supreme
Court
also
denied
Petitioner’s untimely writ application without stated reasons on
June 18, 2010. State ex rel. Shank v. State, 38 So.3d 316 (La.
2010).
On July 12, 2013, over three years later, Petitioner submitted
a second state post-conviction relief application to the trial
court asserting two grounds for relief: (1) the State of Louisiana
knowingly presented false testimony without correction; and (2)
Petitioner was denied effective assistance of counsel under the
Sixth Amendment. (St. Rec. Vol. 5 of 9, Application for Post-
5
Conviction Relief, 7/17/13 (dated 7/12/13)). This application was
denied on October 18, 2013, as untimely and the trial court found
no exception to the procedural bar under La. Code Crim. P. art.
930.8.
On
March
11,
2014,
the
state
appellate
court
denied
Petitioner’s writ application due to untimely filing and no error
in the trial court’s ruling. (St. Rec. Vol. 8 of 9, 5th Cir. Order,
14-KH-33, 3/11/14; 5th Cir. Writ Application, 14-KH-33, 1/13/14
(dated 1/6/14); Trial Court Order, 11/26/13). On December 8, 2014,
the Louisiana Supreme Court also denied Petitioner’s related writ
application without stated reasoning. State ex rel. Shank v. State,
153 So.3d 434 (La. 2014).
On September 17, 2015, Petitioner filed the instant federal
habeas corpus petition claiming that his conviction was obtained
by (1) the unconstitutional failure of the prosecution to disclose
favorable evidence; and (2) the denial of effective assistance of
counsel. Petitioner prayed for relief in the form of:
(1)
An evidentiary hearing;
(2)
Appointment of counsel;
(3)
Leave for discovery;
(4)
Leave for funds for expert testing;
(5)
Leave to amend petition; and
(6)
Federal Habeas Corpus relief from Petitioner’s state
conviction and sentence.
6
After the state filed a response in opposition, the magistrate
judge issued her Report and Recommendations on March 4, 2016,
recommending that the instant petition for habeas corpus relief be
denied and dismissed with prejudice as time-barred. Rec. Doc. 23.
On March 23, 2016, Petitioner filed written objections to the
Report and Recommendations. Rec. Doc. 24. He was granted leave to
amend his objections in order to show the date he received the
Report and Recommendations so as to prove the timeliness of the
objections. Rec. Doc. 25.
III. REPORT AND RECOMMENDATIONS
The Magistrate Judge’s Report and Recommendations found that
Petitioner’s federal habeas corpus petition should be denied as
time-barred
and
dismissed
with
prejudice.
Rec.
Doc.
23.
Specifically, under the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Petitioner had one year from the date his
conviction became final to bring a § 2254 claim. Id. at 7. Under
federal
law,
the
Magistrate
Judge
found
that
Petitioner’s
conviction became final on February 15, 2007 when he did not seek
review in the United States Supreme Court. Id. Thus, any § 2254
claim had to have been brought by February 15, 2008. Id.
Furthermore, the Magistrate Judge did not find any evidence
that statutory or equitable tolling extended Petitioner’s deadline
to file his habeas petition. Id. at 8-12. An untimely or improperly
filed state post-conviction application does not interrupt the
7
running of the one-year period to file under AEDPA. Id. at 8-9.
The Magistrate found that Petitioner’s first state post-conviction
application was untimely – it was filed after the expiration of
the AEDPA filing period. Id. at 9-10. The Magistrate found that
Petitioner then allowed three years to elapse before he filed a
second attempt at post-conviction relief. Id. at 10. Finally, after
his
second
attempt
was
also
unsuccessful,
Petitioner
waited
another nine months before filing the instant federal petition.
Id. The Magistrate did not find any evidence in the record, nor
any presented by Petitioner, that would justify extending the
extraordinary
remedy
of
equitable
tolling
to
the
timeliness
calculation. Id. at 12.
The magistrate also did not find any merit in Petitioner’s
contention that the procedural bar to his untimely filed state
post-conviction applications should be excused. Id. at 12-13. The
Magistrate Judge did not find that the Supreme Court holdings in
Martinez and Trevino provided Petitioner any relief from the
procedural
bar
since
Petitioner’s
federal
petition
was
also
untimely. Id. at 13.
Finally,
the
Magistrate
Judge
addressed
Petitioner’s
contention that the actual innocence exception to the state imposed
procedural bar to review of his federal habeas claims should apply.
Id. at 13-15. The magistrate found that Petitioner had not pointed
to any new evidence, let alone reliable evidence, of his factual
8
innocence. Id. at 14. The documents Petitioner claimed he did not
have at trial were provided to his attorney or were presented at
trial. Id. Petitioner also did not point to any evidence of his
actual innocence per se, just alleged procedural errors at trial.
Id. at 15.
Without meeting the burden to invoke the actual innocence
exception, or any proof that statutory or equitable tolling should
apply, the magistrate judge found Petitioner’s federal habeas
petition untimely. Id.
IV.
PETITIONER’S WRITTEN OBJECTIONS
Petitioner
filed
Written
Objections
to
the
Magistrate’s
Report and Recommendations along with a memorandum in support,
praying that the Court dismiss the Magistrate Judge’s Report and
Recommendations. Rec. Doc. 24.
Petitioner asserts nine specific objections to the Magistrate
Judge’s Report and Recommendation:
(1)
The Magistrate Judge’s failure to adjudicate his Second
Motion for Leave to File a Reply provides Petitioner a
right to file a reply to Respondent’s procedural
objection. Furthermore, entering Magistrate Judge’s
Report and Recommendation and dismissing his petition as
time-barred results in error;
(2)
Petitioner generally objects to the Magistrate Judge’s
denial of his habeas corpus petition as time-barred;
(3)
Petitioner was entitled to an evidentiary hearing under
28 U.S.C. § 2254(e)(2) and Rule 8 of the Rules Governing
§ 2254;
9
(4)
The Magistrate Judge’s findings regarding statutory
tolling entitlements under 28 U.S.C. § 2244 (d)(1)(B)(D)
of claims 1-a, 1-c, 1-e, 2-a, 2-b, 2-c, and 2-e
constitutes error;
(5)
The State’s Open File pledge paired with the suppression
of the claims caused Petitioner’s untimely federal
filings;
(6)
The State created an impediment by taking Strickland
claims outside the guaranteed protections of direct
appeal, thus violating the Sixth and Fourteenth
Amendments;
(7)
Each asserted claim of Strickland led to Petitioner’s
untimely filing;
(8)
The Magistrate Judge’s finding regarding equitable
tolling under Martinez constitutes error; and
(9)
The Magistrate Judge’s findings regarding “miscarriage
of justice” exception constitutes error.
Id. at 1-4.
V.
LAW AND ANALYSIS:
Upon timely objection of a Magistrate Judge's findings and
recommendation,
the
district
court
“shall
make
a
de
novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1) (2012). “A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made
by the magistrate judge.
The judge may also receive further
evidence or recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b)(1) (2012).
10
Magistrate Judge Roby’s Report and Recommendations concluded
that the petition should be denied and dismissed with prejudice
because it is procedurally barred by being untimely filed. See
Rec. Doc. 23. The threshold questions in habeas corpus review are
whether: (1) the petition was timely filed and not procedurally
barred; and (2) whether the claims raised by the petitioner were
adjudicated on the merits in state court and all state court
remedies exhausted. Nobles v. Johnson, 127 F.3d 409, 419-20 (5th
Cir. 1997) (citing 28 U.S.C. § 2254(b)(c) (2006)).
Petitioner’s
application
for
habeas
corpus
relief
is
controlled by AEDPA, which imposes a one-year period in which to
file § 2254 claims. The one-year period commences when the state
conviction is deemed final, which is either after the conclusion
of the direct appeal, or if no appeal sought, after the time for
seeking review expires. Duncan v. Walker, 533 U.S. 167, 176-80
(2001);
28
statutorily
U.S.C.
tolled
2254(d)(1)(A).
while
a
However,
properly
filed
this
motion
period
for
is
post-
conviction relief or other collateral review is pending. 28 U.S.C.
2244(d)(2).
A. Statutory Tolling
Petitioner believes that statutory tolling applies to his
situation because of delays in receiving requested documents and
transcript copies from the state. However, his efforts to obtain
11
copies of the record did not constitute collateral review for
purposes of statutory tolling.
28 U.S.C. § 2244(d) contains a tolling provision intended to
allow state prisoners to exhaust state remedies without having
that time count against them before filing a habeas petition in
federal court. See, e.g., Clarke v. Rader, 721 F.3d 339, 343 (5th
Cir. 2013). The § 2244(d)(2) tolling provision applies except when
"an applicant is prevented from filing due to an impediment to
filing an application created by State action in violation of the
Constitution or laws of the United States."
Id.
For statutory tolling to apply, the state post-conviction
application must be “properly filed,” meaning the applicant must
have complied with all procedural requirements, such as timeliness
and place of filing, as imposed by the state. Pace v. DiGuglielmo,
544 U.S. 408, 413-414 (2005). The matter is considered “pending”
while the state collateral review process is continuing. Carey v.
Saffold, 536 U.S. 214, 219-20 (2002). Additionally, the state
filings for which tolling is sought must have challenged the same
conviction and addressed the same substantive claims raised in the
federal habeas petition. Godfrey v. Dretke, 396 F.3d 681, 687-88
(5th Cir. 2005).
Petitioner’s conviction was finalized under Federal Law on
February 15, 2007. Thus, the AEDPA one-year period began to run on
February 16, 2007, and expired on
12
February 15, 2008
without
Petitioner timely filing a federal post-conviction application.
Request for documents, or copies of transcripts like those pursued
by the Petitioner, do not constitute “other collateral review” for
purposes of tolling calculation. See, e.g. Manning v. Epps, 688
F.3d 177, 182 (5th Cir. 2012); Brown v. Cain, 112 F. Supp. 2d 585,
587
(E.D.
Therefore,
La.
a
2000),
aff’d,
straightforward
239
F.3d
365
application
of
(5th
Cir.
the
2000).
statute
of
limitations bars Petitioner from filing his writ of habeas corpus
unless he is entitled to equitable tolling under AEDPA, as he
claims.
B. Equitable Tolling
AEDPA provides for equitable tolling in exceptionally rare
circumstances that may have prevented a petitioner from timely
filing his habeas corpus application. Fisher v. Johnson, 174 F.3d
710, 713 (5th Cir. 1999). Normally, “[a] district court’s decision
with
respect
to
equitable
tolling
is
reviewed
for
abuse
of
discretion.” United States v. Wynn, 292 F.3d 226, 229-30 (5th Cir.
2002). Equitable tolling is warranted only when the petitioner was
actively
misled
or
prevented
in
some
extraordinary
way
from
exercising his rights. Pace v. Diguglielmo, 544 U.S. 408, 418-19
(2005). The extension of equitable tolling has only been granted
when the extraordinary circumstances were outside the control of
the petitioner. Holland v. Florida, 560 U.S. 631, 652-53 (2010);
Hardy v. Quarterman, 577 F.3d 596, 599-600 (5th Cir. 2009).
13
Here, Petitioner has not presented any basis for extending
this extraordinary remedy to his § 2244(d) calculation. There are
no extraordinary circumstances listed in the record that indicate
Petitioner was prevented or misled from filing his habeas corpus
claim timely, nor has Petitioner alleged such a circumstance
existed. As such, it appears that Petitioner simply did not file
his state post-conviction relief application or his federal habeas
petition within the time period allowed for such actions. Thus,
there is no basis for equitable tolling.
C. Applicability of Martinez v. Ryan
Petitioner
procedural
applications
bar
and
contends
to
that
the
untimely
consider
Court
filed
the
merits
should
state
of
his
excuse
the
post-conviction
habeas
claims.
Petitioner argues the holdings in Martinez v. Ryan and Trevino v.
Thaler support his contention.
In Martinez v. Ryan, the Court held that a state-imposed
procedural default will not bar a federal habeas court form hearing
a substantial claim of ineffective assistance of counsel at trial
if there was no counsel in the collateral proceeding, or if said
counsel was ineffective. 132 S.Ct. 1309, 1321 (2012). However,
Martinez does not address nor provide any remedy when a habeas
corpus petition is untimely filed. See id. The same result is found
in Trevino v. Thaler, where the Court upheld Martinez and found
that an attorney’s ignorance in a post-conviction hearing was not
14
a reason to excuse a procedural default ruling. 133 S.Ct. 1911,
1913 (2013).
Martinez and Trevino do not provide a basis for reviewing the
merits of an untimely filed federal habeas petition, even if it
includes
opinion
an
ineffective
constituted
new
assistance
rules
of
of
counsel
claim.
constitutional
Neither
law,
made
retroactive on collateral review that would have started a new
one-year filing period under AEDPA. In re Paredes, No. 14-51160,
2014 WL 5420533, at *6 (5th Cir. Oct. 25, 2014). Petitioner has no
basis for relief from failure to meet AEDPA’s one-year filing
period under Martinez.
D. Actual Innocence Exception
Petitioner asserts that the actual innocence exception to the
procedural bar should be considered to review his federal habeas
claims.
If a petitioner has defaulted his federal claims in state
court, he must “demonstrate cause for the default and actual
prejudice as a result of alleged violation of federal law, or
[show] failure to consider the claims will result in a fundamental
miscarriage of justice.”
Glover v. Hargett, 56 F.3d 682, 684 (5th
Cir. 1995). A petitioner may avoid the procedural bar only if a
fundamental miscarriage of justice will occur if the merits of his
claim are not reviewed, and this can only be demonstrated by a
15
showing of actual innocence. Murray v. Carrier, 477 U.S. 478, 495–
96 (1986).
In order to satisfy the fundamental miscarriage of justice
exception, a petitioner must “show by a preponderance of the
evidence that he is actually innocent of the crime of which he has
been convicted.”
Court
has
innocence,
Schlup v. Delo, 513 U.S. 298, 327 (1995). The
clarified
that
“‘actual
not
legal
insufficiency.”
mere
innocence’
means
Bousley
v.
factual
United
States, 523 U.S. 614, 623 (1998). To establish actual innocence,
Petitioner must show that, “in light of all the evidence ... it is
more likely than not that no reasonable juror would have convicted
him.” United States v. Torres, 163 F.3d 909, 911 (5th Cir. 1999).
In this case, Petitioner cannot succeed on his assertion of
actual innocence because he has not provided any new or reliable
evidence which would undermine the verdict such that a reasonable
factfinder would question his guilt. See Schlup v. Delo, 513 U.S.
298, 316 (1995). Despite Petitioner’s claim that he was never given
the “new” documents, the record indicates that he was provided
with these documents by his counsel and they were presented to him
at trial. Rec. Doc. 23. Furthermore, Petitioner has not presented
any evidence of his actual innocence per se; instead, he asserts
procedural errors in the presentation of the State’s case at trial.
This is not sufficient to meet the high standards of actual
innocence under Schlup, 513 U.S. 332-333.
16
E. Dyslexia and ADA Claim
Petitioner claims his disability prevented him from following
the AEDPA requirements, and thus contends that the Court should
excuse the procedural bar to his federal habeas petition and
consider the merits of his claim. Rec. Doc. 24 at 9. Petitioner
argues he was diagnosed with dyslexia by the Louisiana Department
of Education in 1983 and was assigned to special education classes.
Id. at 10. In 2004, Petitioner claims he was tested by the
Louisiana Department of Public Safety which found he had a seventh
grade
reading
level
and
a
fifth
grade
spelling
level.
Id.
Petitioner claims his mental impairment “substantially limit[s]”
his ability to learn, read and write. Id. Further, Petitioner
contends that his disability “adversely effects [sic] his ability
to timely prepare his legal correspondence. Rec. Doc. 1-1 at 37.
Petitioner argues the state knew of his mental impairment and
failed to prove reasonable accommodations, and therefore are to
blame for the untimeliness of his filings. Rec. Doc. 24 at 9.
In Preiser v. Rodriguez, the Court found that the “essence of
habeas corpus is an attack by a person in custody upon the legality
of that custody.”
411 U.S. 475, 484 (1973). As such, prisoners
may not attempt to evade habeas procedural requirements, such as
exhaustion of state remedies, by characterizing their claims as
seeking a different type of relief. Id. at 489-90. While Title II
of the Americans with Disabilities Act of 1990 (“ADA”) prohibits
17
discrimination against individuals with disabilities by public
entities, including state prisons, the ADA is not compatible with
a habeas corpus petition. See Pennsylvania Dep't of Corrections v.
Yeskey, 524 U.S. 206 (1998). Prisoners may not attempt to evade
the procedural requirements of habeas corpus petitions, such as
exhaustion of state remedies or timely filing, by re-classifying
a habeas claim as an ADA claim. Presier, 411 U.S. at 489.
Petitioner’s claim that his untimely filed habeas petition
should be allowed to proceed because of his ongoing issues with
dyslexia is meritless. Petitioner does not have any valid claims
actionable under ADA for his dyslexia since he has been at LSP.
Therefore, Petitioner cannot use the ADA as a last ditch effort to
work around the procedural default of his habeas petition.
F. Evidentiary Hearing
Under 28 U.S.C. § 2254(e)(2), the court is not required to
hold an evidentiary hearing if the petitioner has “failed to
develop the factual basis of a claim in State court proceedings.”
The exception to this rule is if the claim (1) relies on a “new
rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable or a
factual predicate that could not have been previously discovered
through
the
exercise
of
due
diligence;”
and
(2)
“the
facts
underlying the claim would be sufficient to establish by clear and
convincing
evidence
that
but
for
18
constitutional
error,
no
reasonable factfinder would have found the applicant guilty of the
underlying offense.” 28 U.S.C. § 2254(e)(2). Petitioner has failed
to show that an evidentiary hearing is warranted.
G. Right to File Reply Brief
Petitioner argues that by not granting leave for him to file
a reply in order to address the respondent’s procedural opposition,
the Magistrate Judge erred and violated his right to reply. Rec.
Doc. 24 at 1. However, “the decision as to whether to grant leave
is entrusted to the sound discretion of the district court and
that court’s ruling is reversible only for an abuse of discretion.”
Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993).
Petitioner
was
never
guaranteed
a
right
to
reply
to
the
respondent’s opposition as he contends, and thus it was not an
error for the magistrate judge to not grant him leave to reply.
VI.
CONCLUSION
Based on the foregoing,
IT IS HEREBY ORDERED that Petitioner Christopher S. Shank’s
objections to the Report and Recommendations (Rec. Doc. 24) are
OVERRULED.
IT IS FURTHER ORDERED that the Court hereby approves the
Report and Recommendations of the United States Magistrate Judge
and adopts it as its opinion in this matter.
19
IT IS FURTHER ORDERED Christopher S. Shank’s Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is DENIED and
DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 24th day of August, 2016.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
20
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