Lawson v. Vannoy et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS 13 . 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 10/24/2017.(cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CLEVELAND LAWSON

CIVIL ACTION

VERSUS

NO. 16-16909

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.5 Accordingly, the Court adopts the Magistrate Judge’s Report and
Recommendation as its opinion herein.

R. Doc. 1.
R. Doc. 13.
3
R. Doc. 14.
4
R. Doc. 13.
5
R. Doc. 14. Petitioner contends that his ineffective assistance of
counsel claim rests on unknown facts related to a possible Batson violation.
See id. at 3. Petitioner’s objections could be construed to argue that his
claim is timely under 28 U.S.C. § 2244(d)(1)(D) because he did not discover
the factual predicates of his claim until after his conviction became final.
But this argument is without merit because petitioner does not indicate that
1

2

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).

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.

he has any newly discovered evidence. Petitioner based his untimely
petitions in state and federal court on the racial composition of his jury,
which is not a newly discovered fact. See R. Doc. 1 at 14, 23, 37, 48; see also
Manning v. Epps, 688 F.3d 177, 190 (5th Cir. 2012) (noting that the factual
predicates of petitioner’s Batson claim were evident during his trial). To
the extent that plaintiff continues to seek more information about the
composition of the jury venire, this does not excuse his late filing.
2

Accordingly, IT IS ORDERED that the petition for habeas corpus is
DISMISSED WITH PREJUDICE. The Court will not issue a certificate of
appealability.

24th
New Orleans, Louisiana, this _____ day of October, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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