McCain v. State of Mississippi et al
Filing
29
FINAL JUDGMENT: Ordered that Petitioner's Petition for Writ of Habeas Corpus is denied and dismissed with prejudice; and Ordered that a certificate of appealability is denied. Signed by Honorable David C. Bramlette, III on 9/17/14. (RLW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
KEVIN DALE McCAIN, # 153688
VS.
PETITIONER
CIVIL ACTION NO. 1:13-cv-524(DCB)(MTP)
STATE OF MISSISSIPPI, ET AL.
RESPONDENTS
FINAL JUDGMENT
This cause having come on to be heard on this date upon the
Report and Recommendation of the United States Magistrate Judge
entered in this cause, and the Court, after a full review of the
record, having adopted said Report and Recommendation as the
findings of this Court by a Memorandum Opinion and Order dated this
day, finds that petitioner Kevin Dale McCain’s Petition for a Writ
of Habeas Corpus under 28 U.S.C. § 2254 is denied and dismissed
with prejudice.
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule
11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28
U.S.C. § 22539(c), the Court further finds that the petitioner has
failed to show (1) that reasonable jurists would find this Court’s
“assessment of the constitutional claims debatable or wrong,” or
(2) that reasonable jurists would find “it debatable whether the
petition states a valid claim of the denial of a constitutional
right” and “debatable whether [this Court] was correct in its
1
procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000).1
The Court therefore denies a certificate of appealability.
IT IS, THEREFORE, ORDERED AND ADJUDGED that petitioner Kevin
Dale McCain’s Petition for a Writ of Habeas Corpus under 28 U.S.C.
§2254 is DENIED and dismissed with prejudice.
FURTHER
ORDERED
AND
ADJUDGED
that
a
certificate
of
appealability is DENIED.
SO ORDERED AND ADJUDGED, this the 17th day of September, 2014.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
1
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as
amended effective on December 1, 2009, reads as follows:
(a) Certificate of Appealability. The 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. If the court issues a
certificate, the court must state the specific issue or
issues that satisfy the showing required by 28 U.S.C. §
2253(c)(2). If the court denies a certificate, the
parties may not appeal the denial but may seek a
certificate from the court of appeals under Federal
Rule of Appellate Procedure 22. A motion to reconsider
a denial does not extend the time to appeal.
(b) Time to Appeal. Federal Rule of Appellate
Procedure 4(a) governs the time to appeal an order
entered under these rules. A timely notice of appeal
must be filed even if the district court issues a
certificate of appealability.
2
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