Johnson v. McCain, No. 2:2016cv15330 - Document 10 (E.D. La. 2017)

Court Description: ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 8 . IT IS ORDERED that Johnson's petition for habeas corpus is DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 8/1/2017.(cg)
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Johnson v. McCain Doc. 10 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA LYNDON B. J OHNSON CIVIL ACTION VERSUS NO. 16-15330 SANDI McCAIN, WARDEN SECTION “R” (3) ORD ER AN D REASON S The Court has reviewed de novo the petition for habeas corpus, 1 the record, the applicable law, the Magistrate J udge’s Report and Recom mendation, 2 and the petitioner’s objection to the Magistrate J udge’s Report and Recom m endation. 3 The Magistrate J udge’s recom mended ruling is correct and there is no merit to petitioner’s objection. Accordingly, the Court adopts the Magistrate J udge’s Report and Recom m endation as its opinion herein. Petitioner’s objection is untim ely4 and contains allegations and details that were not raised before the Magistrate J udge when he m ade his Report 1 R. Doc. 1. R. Doc. 8. 3 R. Doc. 9. 4 A party has 14 days to object to a m agistrate judge’s report and recom mendation after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc). The Magistrate J udge’s Report and 2 and Recom mendation. Facts and issues raised for the first tim e in a prisoner’s objections to a Magistrate J udge’s Report and Recom mendation are not properly before the district court. Flores v. Scott, 58 F.3d 637, 1995 WL 371237, at *2 (5th Cir. J une 9, 1995); United States v. Arm strong, 951 F.2d 626, 630 (5th Cir. 1992). Even if the Court were to consider the inform ation in petitioner’s objection, nothing contained therein alters the Magistrate J udge’s correct conclusion that petitioner learned of the factual predicate of his claim on May 1, 20 11, and therefore his claim is untim ely. 5 Accordingly, J ohnson’s petition m ust be dism issed. Furtherm ore, Rule 11 of the Rules Governing Section 2254 Proceedings provides that “[t]he district court m ust issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Before entering the final order, the court m ay direct the parties to subm it arguments on whether a certificate should issue.” Rules Governing Section 2254 Proceedings, Rule 11(a). A court m ay issue a certificate of appealability only if the petitioner m akes “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 Recom mendation is dated J une 26, 20 17, and J ohnson’s objection was not filed until J uly 17, 20 17. 5 R. Doc. 8 at 5-6. 2 Miller-El v. Cockrell, 537 U.S. 322 (20 0 3), 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 m atter, agree that) the petition should have been resolved in a different m anner or that the issues presented [are] ‘adequate to deserve encouragement to proceed further.’” Id. at 336. Petitioner has failed to m eet these standards. IT IS ORDERED that J ohnson’s petition for habeas corpus is DISMISSED WITH PREJ UDICE. New Orleans, Louisiana, this _ _1st_ _ day of August, 20 17. _ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 3