Ross v. Vannoy et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS 12 . Signed by Judge Sarah S. Vance on 9/16/16.(jjs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES DAVID ROSS
SECTION “R” (1)
ORDER AND REASONS
The Court has reviewed de novo the petition for habeas corpus, the
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
Court adopts the Magistrate Judge’s Report and Recommendation as its
Petitioner acknowledges that he failed to submit the necessary
proof to support his claims, but argues that he should be granted an
evidentiary hearing, which would allow petitioner to secure that evidence.
The Magistrate Judge correctly rejects that argument. R. Doc. 12 at 16-17. In
his objections to the Magistrate Judge’s Recommendation, petitioner cites
Townsend v. Sain, 372 U.S. 293 (1963), and Jefferson v. Upton, 560 U.S.
284 (2010), to again argue that he is entitled to an evidentiary hearing. R.
Doc. 13 at 3-4. Both Townsend and Jefferson address evidentiary hearings
for habeas claims filed before the passage of AEDPA, and have no relevance
to habeas claims filed after AEDPA. See Cullen v. Pinholster, 563 U.S. 170
(2011). Therefore, they are of no help to petitioner here.
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.
IT IS ORDERED that Ross’s petition for habeas corpus is DISMISSED
New Orleans, Louisiana, this _____ day of September, 2016.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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