Cerda-Anima v. Vannoy et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS 14 . IT IS ORDERED that plaintiff's petition for habeas corpus is DISMISSED WITH PREJUDICE. The Court will not issue a certificate of appealability. Signed by Judge Sarah S. Vance on 4/19/2017.(cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARRYL VANNOY, WARDEN
SECTION “R” (4)
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 the Court therefore adopts the Magistrate Judge’s Report and
Recommendation as its opinion herein.
In his two page objection, petitioner simply “maintains his original
argument[s] as presented in his § 2254 memorandum.” 1 The objections are
overruled for the reasons offered in the Report. 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
R. Doc. 14.
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 this standard.
IT IS ORDERED that plaintiff’s petition for habeas corpus is
DISMISSED WITH PREJUDICE. The Court will not issue a certificate of
New Orleans, Louisiana, this _____ day of April, 2017.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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