Franklin v. Vannoy et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS - Because petitioner's claims are time-barred, he has not made a substantial showing of the denial of a constitutional right. Accordingly, IT IS ORDERED that the petition for habeas corpus is DISMISSED WITH PREJUDICE. The Court will not issue a certificate of appealability. Signed by Judge Sarah S. Vance on 11/6/2017.(cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IVORY FRANKLIN

CIVIL ACTION

VERSUS

NO. 16-10919

DARRYL VANNOY

SECTION “R” (4)
ORDER

The Court has reviewed de novo the petition for habeas corpus,1 the
record,

the

applicable

law,

the

Magistrate

Judge’s

Report

and

Recommendation,2 and the petitioner’s objections.3 The Magistrate Judge
correctly determined that the petition is time-barred under the
Antiterrorism and Effective Death Penalty Act.4

Petitioner’s objections

simply rehash arguments made before the Magistrate Judge and are without
merit. Accordingly, the Court adopts the Magistrate Judge’s Report and
Recommendation as its opinion herein.
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,

1
2
3
4

R. Doc. 3.
R. Doc. 16.
R. Doc. 19.
R. Doc. 16.

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).

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).
Because petitioner’s claims are time-barred, he has not made a
substantial showing of the denial of a constitutional right. Accordingly, IT
IS ORDERED that the petition for habeas corpus is DISMISSED WITH
PREJUDICE. The Court will not issue a certificate of appealability.

6th
New Orleans, Louisiana, this _____ day of November, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
2