Johnson v. McCain

Filing 10

ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 8 . IT IS ORDERED that Johnson's petition for habeas corpus is DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 8/1/2017.(cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LYNDON B. JOHNSON

CIVIL ACTION

VERSUS

NO. 16-15330

SANDI McCAIN, WARDEN

SECTION “R” (3)

ORDER AND REASONS
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 objection to the Magistrate Judge’s
Report and Recommendation. 3

The Magistrate Judge’s recommended

ruling is correct and there is no merit to petitioner’s objection. Accordingly,
the Court adopts the Magistrate Judge’s Report and Recommendation as its
opinion herein.
Petitioner’s objection is untimely4 and contains allegations and details
that were not raised before the Magistrate Judge when he made his Report

R. Doc. 1.
R. Doc. 8.
3
R. Doc. 9.
4
A party has 14 days to object to a magistrate judge’s report and
recommendation after being served with a copy. See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72; Douglass v. United Services Auto. Ass’n, 79 F.3d 1415,
1430 (5th Cir. 1996) (en banc). The Magistrate Judge’s Report and
1

2

and Recommendation.

Facts and issues raised for the first time in a

prisoner’s objections to a Magistrate Judge’s Report and Recommendation
are not properly before the district court. Flores v. Scott, 58 F.3d 637, 1995
WL 371237, at *2 (5th Cir. June 9, 1995); United States v. Armstrong, 951
F.2d 626, 630 (5th Cir. 1992). Even if the Court were to consider the
information in petitioner’s objection, nothing contained therein alters the
Magistrate Judge’s correct conclusion that petitioner learned of the factual
predicate of his claim on May 1, 2011, and therefore his claim is untimely.5
Accordingly, Johnson’s petition must be dismissed.
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

Recommendation is dated June 26, 2017, and Johnson’s objection was not
filed until July 17, 2017.
5
R. Doc. 8 at 5-6.
2

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 Johnson’s petition for habeas corpus is
DISMISSED WITH PREJUDICE.

1st
New Orleans, Louisiana, this _____ day of August, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

3