RUBENS v. CAIN

Civil Action No. 14-789.

PETER RUBENS, v. BURL CAIN, WARDEN, Section "R" (1).

United States District Court, E.D. Louisiana.

Editors Note
Applicable Law: 28 U.S.C. § 2254
Cause: 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (State)
Nature of Suit: 530 Habeas Corpus (General)
Source: PACER


Attorney(s) appearing for the Case

Peter R. Rubens, Plaintiff, Pro Se.

N. Burl Cain, Defendant, represented by Mithun Burde Kamath , Orleans Parish District Attorney's Office.


ORDER

SARAH S. VANCE, District Judge.

The Court has reviewed de novo the petition for habeas corpus, the record, the applicable law, the Magistrate Judge's Report and Recommendation, and the petitioner's objections to the Magistrate Judge's Report and Recommendation. The Magistrate Judge's recommended ruling is correct, and petitioner's objections essentially rehash his arguments before the Magistrate Judge or are otherwise without merit. Accordingly, the Court adopts the Magistrate Judge's Report and Recommendation as its opinion herein.

Furthermore, 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 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). In Miller-El v. Cockrell, 537 U.S. 322 (2003), the Supreme Court held that 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.'" Id. at 336. Petitioner has failed to meet this standard.

IT IS ORDERED that plaintiff's petition for habeas corpus is DISMISSED WITH PREJUDICE. The Court will not issue a certificate of appealability.


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