Orellana v. Kent ( 2022 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ORELLANA CIVIL ACTION VERSUS NO. 19-13177 KENT ET AL SECTION “L” CERTIFICATE OF APPEALABILITY The Court recently issued a final order in connection with the above-captioned habeas corpus proceeding, in which the detention complained of arises out of process issued by a state court. R. Doc. 11. After considering the record and the requirements of 28 U.S.C. § 2253(c)(1) and Federal Rule of Appellate Procedure 22(b)(1), the Court concludes that a certificate of appealability shall not issue. A certificate of appealability will be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller–El v. Cockrell, 537 U.S. 322, 330 (2003); Foster v. Quarterman, 466 F.3d 359, 364 (5th Cir. 2006). The applicant makes a substantial showing if it is demonstrated “that jurists of reason could debate the propriety of the district court's assessment of his constitutional claims or conclude that his claims ‘are adequate to deserve encouragement to proceed further.’” United States v. Wainwright, 237 Fed. App’x 913, 914 (5th Cir.2007) (quoting Miller–El, 537 U.S. at 327); see Foster, 466 F.3d at 364. For a certificate of appealability to issue on a procedural question, both the underlying constitutional claim and the procedural claim must be debatable. United States v. Teel, No. 20-10606, 2021 WL 2492751, at *1 (5th Cir. Apr. 13, 2021). The Court adopted the U.S. Magistrate Judge’s Report and Recommendation recommending that the petition be dismissed with prejudice because it is time-barred. Petitioner has failed to make a substantial showing that jurists of reason would debate both his underlying constitutional claim and his procedural claim or that his claims deserve encouragement to proceed. Accordingly, IT IS ORDERED that a certificate of appealability SHALL NOT BE ISSUED. New Orleans, Louisiana, this 31st day of May, 2022. ELDON E. FALLON UNITED STATES DISTRICT JUDGE