Joseph v. Gusman ( 2020 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA RUDOLPH JOSEPH CIVIL ACTION VERSUS NO. 20-50-WBV-KWR MARLIN GUSMAN, ET AL. SECTION “D”(4) ORDER Before the Court is petitioner, Rudolph Joseph’s, Appeal to Magistrate’s Denial of Counsel and Traversal to Magistrate’s Recommendation to Dismiss Habeas Corpus Petition.1 The Court, having considered the Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241, 2 the record, the applicable law, the Report and Recommendation of the Chief United States Magistrate Judge,3 and Petitioner’s Objections to the Report and Recommendation,4 hereby approves the Report and Recommendation of the Chief United States Magistrate Judge and adopts it as its opinion in this matter.5 Additionally, Rule 11(a) of the Rules Governing 28 U.S.C. § 2254 proceedings provides that, “The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A court may only issue a certificate of appealability if the petitioner makes “a substantial showing of the denial 1 R. Doc. 18. 2 R. Doc. 1. 3 R. Doc. 17. 4 R. Doc. 18. 5 The Court recognizes that the Magistrate Judge referred to Petitioner as Mr. Johnson instead of Mr. Joseph several times in the Report and Recommendation. This Court is satisfied after a review of the record that this reference to an incorrect name is simply a mistake and that the entire matter relates only to Petitioner Rudolph Joseph. of a constitutional right.” 6 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.7 The Court finds that Rudolph Joseph’s Petition fails to satisfy this standard. Accordingly, the Court will not issue a certificate of appealability. Accordingly, IT IS HEREBY ORDERED that Rudolph Joseph’s Appeal to Magistrate’s Denial of Counsel and Traversal to Magistrate’s Recommendation to Dismiss Habeas Corpus Petition8 is DENIED. IT IS FURTHER ORDERED that Rudolph Joseph’s Petition for Writ of Habeas Corpus Under 28 U.S.C. § 22419 is DISMISSED WITH PREJUDICE to the extent that Petitioner seeks dismissal of his state court charges based upon speedy trial violations, as such relief is unavailable under § 2241. To the extent Petitioner seeks appropriate relief under § 2241 (a speedy trial), the Petition is DISMISSED WITHOUT PREJUDICE for failure to exhaust state court review of the alleged speedy trial violations. IT IS FURTHER ORDERED that the Court DENIES a certificate of appealability. 6 28 U.S.C. § 2253(c)(2). 7 Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 8 R. Doc. 18. 9 R. Doc. 1. IT IS FURTHER ORDERED that Petitioner’s appeal of the Chief Magistrate Judge’s Order and Reasons denying Petitioner’s Motion for Appointment of Counsel! is DENIED. New Orleans, Louisiana, September 9, 2020. Vctfae WENDY B. VITTER United States District Judge 10 R. Doc. 16.