Loston v. Cain et al
Filing
14
ORDER ADOPTING REPORT AND RECOMMENDATIONS 10 . For the reasons stated in the Report and Recommendation, petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, IT IS ORDERED that the petition is DISMISSED WITH PREJUDICE. The Court will not issue a certificate of appealability. Signed by Judge Sarah S. Vance on 8/1/2018.(cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DONALD LOSTON
CIVIL ACTION
VERSUS
NO. 17-4842
BURL CAIN
SECTION “R” (3)
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 petitioner’s claims are meritless.
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,
the court may direct the parties to submit arguments on whether a certificate
1
2
3
R. Doc. 3.
R. Doc. 10.
R. Doc. 12.
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).
For the reasons stated in the Report and Recommendation, petitioner
has not made a substantial showing of the denial of a constitutional right.
Accordingly, IT IS ORDERED that the petition is DISMISSED WITH
PREJUDICE. The Court will not issue a certificate of appealability.
1st
New Orleans, Louisiana, this _____ day of August, 2018.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
2
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