Mazique v. Robinson et al

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS 10 ; 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 12/28/2017.(blg)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA TIMOTHY MAZIQUE CIVIL ACTION VERSUS NO. 17-6675 ALVIN ROBINSON SECTION “R” (3) ORDER The Court has reviewed de novo the petition for habeas corpus,1 the record, the applicable law, the Magistrate Recommendation,2 and petitioner’s objections.3 Judge’s Report and Petitioner requests a certificate of appealability, but presents no substantive objections to the Report and Recommendation.4 The Magistrate Judge’s recommended ruling is correct, and the Court adopts the 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 should issue.” Rules Governing Section 2254 Proceedings, Rule 11(a). A 1 2 3 4 R. Doc. 1. R. Doc. 10. R. Doc. 11. Id. 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). Here, petitioner has not made a substantial showing of the denial of a constitutional right. For the reasons outlined by the Magistrate Judge, petitioner’s claims are without arguable merit, and the state court reasonably applied federal law in denying his application for post-conviction relief. Accordingly, IT IS ORDERED that the petition for habeas corpus is DISMISSED WITH PREJUDICE. The Court will not issue a certificate of appealability. 28th New Orleans, Louisiana, this _____ day of December, 2017. _____________________ SARAH S. VANCE UNITED STATES DISTRICT JUDGE 2

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