McCain v. State of Mississippi et al, No. 1:2013cv00524 - Document 29 (S.D. Miss. 2014)
Court Description: 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)
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McCain v. State of Mississippi et al Doc. 29 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 Dockets.Justia.com 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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