Opinion
CIVIL ACTION NO: 13-6405 SECTION: R(2)
09-25-2014
MIKE ALVAREZ v. N. BURL CAIN, et al.
ORDER AND REASONS
Before the Court is plaintiff Mike Alvarez's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and the Magistrate Judge's Report and Recommendation ("R&R") that Alvarez's petition be denied and dismissed with prejudice. The Court, having reviewed de novo the complaint, the record, the applicable law, the Magistrate Judge's R&R, and the plaintiff's objections to the Magistrate Judge's R&R, hereby approves the R&R and adopts it as its opinion.
R. Doc. 5.
R. Doc. 11.
On June 17, 2010, plaintiff was tried before a jury in Louisiana's 24th Judicial District Court, Parish of Jefferson. The jury found plaintiff guilty on three counts of aggravated crime against nature upon P.B., a juvenile under the age of seventeen and at least three years younger than the offender. After exhausting all state court remedies, plaintiff filed a petition for a writ of habeas corpus in this Court alleging that he received ineffective assistance of counsel at trial for several reasons. After considering plaintiff's allegations, the Magistrate Judge recommended that plaintiff's petition be denied and dismissed with prejudice.
R. Doc. 5 at 1.
Id. at 14; R. Doc. 11 at 2-3.
R. Doc. 5 at 3, 13.
R. Doc. 11.
In his objections to the R&R, plaintiff does not make new arguments or challenge the precedent cited by the Magistrate Judge. Instead, plaintiff reiterates three arguments made in his petition: (1) that defense counsel failed to challenge the "uncorroborated" testimony of the victim; (2) that defense counsel failed to object to a violation of the plaintiff's Sixth Amendment constitutional rights under the Confrontation Clause; and (3) that defense counsel failed to object to the introduction of an out-of-court identification as inadmissible hearsay. The Magistrate Judge thoroughly addressed each of these arguments in the R&R, and the Court need not reiterate his analysis.
R. Doc. 12.
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Rule 11(a) 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." A court may only issue a certificate of appealability if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). 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." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (quotation marks removed). The Court finds that plaintiff's petition, in conjunction with his objections to the Magistrate Judge's R&R, does not satisfy this standard.
Accordingly,
Mike Alvarez's petition for habeas corpus is DISMISSED WITH PREJUDICE. The Court will not issue a certificate of appealability.
New Orleans, Louisiana, this 25th day of September, 2014.
/s/_________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE