Joseph v. McCain
Filing
14
ORDER ADOPTING 12 REPORT AND RECOMMENDATIONS. IT IS ORDERED that the petition for habeas corpus is DISMISSED WITHOUT PREJUDICE. The court will not issue a certificate of appealability. Signed by Judge Sarah S. Vance on 01/03/2019.(am)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RANELL JOSEPH
CIVIL ACTION
VERSUS
NO. 18-183
S.W. “SANDY” McCAIN, WARDEN
SECTION “R” (2)
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
The Magistrate Judge
correctly determined that the petition should be dismissed without prejudice
because petitioner has failed to exhaust in state court any of the claims in his
federal court petition. 4
Petitioner’s objections are meritless, and are
adequately addressed in the Report and Recommendation. 5 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
1
2
3
4
5
R. Doc. 4.
R. Doc. 12.
R. Doc. 13.
R. Doc. 12 at 7.
R. Doc. 13.
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).
Petitioner has failed to meet this standard.
Accordingly, IT IS
ORDERED that the petition for habeas corpus is DISMISSED WITHOUT
PREJUDICE. The court will not issue a certificate of appealability.
3rd
New Orleans, Louisiana, this _____ day of January, 2019.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?