Opinion
Civil Action 6:21-CV-00031
07-07-2022
KEVIN PAUL CARTER, Petitioner, v. BOBBY LUMPKIN, Respondent.
MEMORANDUM AND RECOMMENDATION
Jason B. Libby, United States Magistrate Judge
Pending is Petitioner's Motion for Certificate of Appealability. (D.E. 39). For the reasons stated below, it is respectfully recommended this Motion be DENIED.
Proceeding pro se, Petitioner is a state prisoner seeking relief pursuant to 28 U.S.C. § 2254, challenging his 2017 Victoria County conviction for manslaughter. On October 1, 2021, the undersigned entered a Memorandum and Recommendation (“M & R”) recommending Petitioner's application for habeas corpus relief be dismissed as time barred and a certificate of appealability be denied. (D.E. 20). On March 26, 2022, this M & R was accepted and a final judgment was entered. (D.E. 32 and D.E. 33). In the Order accepting the M & R, the District Judge considered Petitioner's objections to the M & R, independently reviewed the record and considered the applicable law, dismissing the petition and denying Petitioner a certificate of appealability. (D.E. 32). Petitioner filed a Notice of Appeal on June 2, 2022 and the pending Motion for Certificate of Appealability on June 13, 2022. (D.E. 36 and D.E. 39).
Petitioner requests a Certificate of Appealability, reasserting the same arguments raised in his Petition as well as other arguments related to alleged deficiencies in his underlying criminal case without addressing the timeliness of his federal petition. The undersigned made a recommendation to deny Petitioner's §2254 petition and to deny a certificate of appealability and the District Judge then reviewed this recommendation and accepted it. Petitioner has not made a substantial showing of the denial of a constitutional right and that the assessment of limitations in this case is debatable so as to entitle him to a certificate of appealability. 28 U.S.C. § 2253(c)(2). Because a certificate of appealability has previously been denied by the Order accepting the M & R and because Petitioner raises no new issues, the undersigned respectfully recommends Petitioner's Motion for Certificate of Appealability be DENIED. (D.E. 39).
SO ORDERED
NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of the Memorandum and Recommendation, a party may file with the Clerk and serve on the United States Magistrate Judge and all parties, written objections, pursuant to 28 U.S.C. § 636(b)(1)(c); Rule 72(b) of the Federal Rules of Civil Procedure; and Article IV, General Order No. 2002-13, United States District Court for the Southern District of Texas.
A party's failure to file written objections to the proposed findings, conclusions, and recommendations in a Magistrate Judge's report and recommendation within FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).