Carter v. Lumpkin

Filing 57

MEMORANDUM OPINION AND ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS DENYING 39 MOTION for Certificate of Appealability, and ACCEPTING 45 Memorandum and Recommendations. (Signed by Judge Drew B Tipton) Parties notified.(BrittanyBoniface, 6)

Case 6:21-cv-00031 Document 57 Filed on 08/01/22 in TXSD Page 1 of 4
United States District Court
Southern District of Texas

ENTERED
August 01, 2022

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
KEVIN PAUL CARTER,
Petitioner,
VS.
BOBBY LUMPKIN,
Respondent.

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Nathan Ochsner, Clerk

Civil Case No. 6:21-CV-00031

MEMORANDUM OPINION AND ORDER
ACCEPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is the July 7, 2022 Memorandum and Recommendation
(“M&R”) signed by Magistrate Judge Jason B. Libby. (Dkt. No. 45).

In the M&R,

Magistrate Judge Libby recommends that the Court deny Petitioner Kevin Paul Carter’s
Motion for Issuance of a Certificate of Appealability (“COA”) because: (1) a COA has
previously been denied by this Court; (2) Carter’s current motion raises no new issues
and fails to address the timeliness of his federal habeas petition under 28 U.S.C. § 2254;
and (3) Carter has not made a substantial showing of the denial of a constitutional right
and that the assessment of limitations in this case is debatable, so as to entitle him to a
COA.

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I. LEGAL STANDARD

I.

The Parties received proper notice and the opportunity to object to the proposed
findings and recommendations.1 See 28 U.S.C. § 636(b)(1). Carter filed timely objections.
(Dkt. No. 51). As a result, the Court “shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). But a petitioner does not raise an objection “by merely
reurging arguments contained in the original petition.” Edmond v. Collins, 8 F.3d 290, 293
n.7 (5th Cir. 1993). Relevant here, a court must liberally construe a pro se document.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
The Court has conducted de novo review of those portions of the M&R to which
Carter specifically objects. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29
(5th Cir. 1996) (en banc). Based on this review and for the reasons that follow, the Court
ACCEPTS the M&R.
REVIEW OF THE OBJECTIONS

II.

Carter objects to the M&R, arguing that he should be allowed to present the claims
raised in his habeas petition to the Fifth Circuit because his trial counsel had a conflict of
interest and attempted to withdraw from the case.

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Rule 72 normally governs review of a magistrate judge’s M&R. The comment to Rule 72
of the Federal Rules of Civil Procedure, however, states that Rule 72 is inapplicable in the habeas
corpus context. See FED. R. CIV. P. 72(b) advisory committee’s note to 1983 addition; accord Nara
v. Frank, 488 F.3d 187, 195 (3d Cir. 2007).

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III.

DISCUSSION
“The COA determination under § 2253(c) requires an overview of the claims in

the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537
U.S. 322, 336, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931 (2003). As to claims the Court rejects
solely on procedural grounds, the petitioner must show both that “jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604,
146 L. Ed. 2d 542 (2000) (emphasis added); see also 28 U.S.C. § 2253(c)(2).
Carter’s habeas petition was dismissed as untimely, and he was denied a COA.
The M&R recommends that the Court again deny a COA because Carter raises no new
issues, but instead reasserts the same arguments raised in his habeas petition, as well as
other arguments related to alleged deficiencies in his underlying criminal case, without
addressing the timeliness of his habeas petition. His lone objection to the M&R repeats
the complaints contained in his motion for a COA regarding his counsel’s alleged conflict
of interest and similarly fails to address the timeliness of his habeas petition. On this
record, the Court agrees with the M&R’s conclusion that reasonable jurists would not
find that Petitioner has stated a valid claim of denial of a constitutional right or that the
assessment of limitations in this case is debatable, so as to entitle him to a COA.

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IV.

CONCLUSION
For the foregoing reasons, the Court ACCEPTS the M&R (Dkt. No. 45) as the

opinion of the Court and DENIES Carter’s Motion for Issuance of a Certificate of
Appealability (Dkt. No. 39).
It is SO ORDERED.
Signed on August 1, 2022.
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DREW B. TIPTON
UNITED STATES DISTRICT JUDGE

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