Joseph v. Gusman et al

Filing 19

ORDER:IT IS HEREBY ORDERED that 18 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court is DENIED. IT IS FURTHER ORDERED that Rudolph Joseph's 1 Petition for Writ of Habeas Corpus Under 28 U.S.C. 2241 is DISMISSED WITH PREJUDIC E as set forth in document. IT IS FURTHER ORDERED that the Court DENIES a certificate of appealability. IT IS FURTHER ORDERED that Petitioner's appeal of the Chief Magistrate Judge's 16 Order and Reasons denying Petitioner's Motion for Appointment of Counsel is DENIED.. Signed by Judge Wendy B Vitter on 9/9/2020. (jeg)

Case 2:20-cv-00050-WBV Document 19 Filed 09/09/20 Page 1 of 3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RUDOLPH JOSEPH

CIVIL ACTION

VERSUS

NO. 20-50-WBV-KWR

MARLIN GUSMAN, ET AL.

SECTION “D”(4)
ORDER

Before the Court is petitioner, Rudolph Joseph’s, Appeal to Magistrate’s Denial
of Counsel and Traversal to Magistrate’s Recommendation to Dismiss Habeas Corpus
Petition. 1

The Court, having considered the Petition for Writ of Habeas Corpus

Under 28 U.S.C. § 2241,

2

the record, the applicable law, the Report and

Recommendation of the Chief United States Magistrate Judge, 3 and Petitioner’s
Objections to the Report and Recommendation, 4 hereby approves the Report and
Recommendation of the Chief United States Magistrate Judge and adopts it as its
opinion in this matter.5
Additionally, Rule 11(a) of the Rules Governing 28 U.S.C. § 2254 proceedings
provides that, “The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” A court may only issue a
certificate of appealability if the petitioner makes “a substantial showing of the denial

R. Doc. 18.
R. Doc. 1.
3 R. Doc. 17.
4 R. Doc. 18.
5 The Court recognizes that the Magistrate Judge referred to Petitioner as Mr. Johnson instead of Mr.
Joseph several times in the Report and Recommendation. This Court is satisfied after a review of the
record that this reference to an incorrect name is simply a mistake and that the entire matter relates
only to Petitioner Rudolph Joseph.
1
2

Case 2:20-cv-00050-WBV Document 19 Filed 09/09/20 Page 2 of 3

of a constitutional right.”

6

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.7 The Court finds that Rudolph Joseph’s Petition
fails to satisfy this standard. Accordingly, the Court will not issue a certificate of
appealability.
Accordingly,
IT IS HEREBY ORDERED that Rudolph Joseph’s Appeal to Magistrate’s
Denial of Counsel and Traversal to Magistrate’s Recommendation to Dismiss Habeas
Corpus Petition8 is DENIED.
IT IS FURTHER ORDERED that Rudolph Joseph’s Petition for Writ of
Habeas Corpus Under 28 U.S.C. § 22419 is DISMISSED WITH PREJUDICE to the
extent that Petitioner seeks dismissal of his state court charges based upon speedy
trial violations, as such relief is unavailable under § 2241. To the extent Petitioner
seeks appropriate relief under § 2241 (a speedy trial), the Petition is DISMISSED
WITHOUT PREJUDICE for failure to exhaust state court review of the alleged
speedy trial violations.
IT IS FURTHER ORDERED that the Court DENIES a certificate of
appealability.

6
7
8
9

28 U.S.C. § 2253(c)(2).
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
R. Doc. 18.
R. Doc. 1.

Case 2:20-cv-00050-WBV Document 19 Filed 09/09/20 Page 3 of 3

IT IS FURTHER ORDERED that Petitioner’s appeal of the Chief Magistrate
Judge’s Order and Reasons denying Petitioner’s Motion for Appointment of Counsel 10
is DENIED.
New Orleans, Louisiana, September 9, 2020.

_________________________________
WENDY B. VITTER
United States District Judge

10

R. Doc. 16.