Mazique v. Robinson et al, No. 2:2020cv02695 - Document 17 (E.D. La. 2021)
Court Description: ORDER AND REASONS: The Court adopts the Magistrate Judge's 16 R&R as its opinion. For the reasons stated in the 16 Report and Recommendation, IT IS ORDERED that the petition is DISMISSED WITHOUT PREJUDICE. The Court will not issue a certificate of appealability. Signed by Judge Sarah S. Vance on 5/5/2021.(mm)
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Mazique v. Robinson et al Doc. 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA TIMOTHY J. MAZIQUE VERSUS CIVIL ACTION NO. 20-2695 WARDEN ALVIN ROBINSON SECTION “R” (3) ORDER AND REASONS Before the Court is Timothy J. Mazique’s 28 U.S.C. § 2254 petition for a writ of habeas corpus. 1 This matter was referred to Magistrate Judge Dana Douglas under Eastern District of Louisiana Local Civil Rule 73.2(A) and 28 U.S.C. § 636(b) for a Report and Recommendation (R&R). Magistrate Judge Douglas concluded in that Mazique was not in custody at the time he filed his habeas petition and that the Court does not have subject matter jurisdiction over his petition as a consequence. 2 Plaintiff did not object to the R&R. Therefore, this Court reviews the R&R for clear error. See Fed. R. Civ. P. 72(b) advisory committee’s note (1983) (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”). The Court finds no clear error in the Magistrate Judge’s 1 2 R. Doc. 5. R. Doc. 16 at 1. Dockets.Justia.com analysis. Therefore, the Court adopts the Magistrate Judge’s R&R as its opinion. 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.” Rules Governing Section 2254 Proceedings, Rule 11(a). The 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). The Court does not issue a certificate of appealability. See Williams v. Chatman, 510 F.3d 1290, 1294-95 (11th Cir. 2007) (“Where a district court lacks subject matter jurisdiction over a Rule 60(b) motion, . . . it also lacks jurisdiction to grant a COA.”). For the reasons stated in the Report and Recommendation, IT IS ORDERED that the petition is DISMISSED WITHOUT PREJUDICE. The Court will not issue a certificate of appealability. 5th New Orleans, Louisiana, this _____ day of May, 2021. _____________________ SARAH S. VANCE UNITED STATES DISTRICT JUDGE 2
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