Opinion
CIVIL ACTION NO: 13-4918
01-21-2014
GREGORY MITCHELL v. ROBERT C. TANNER, WARDEN
ORDER AND REASONS
Before the Court is Gregory Mitchell's petition for federal habeas corpus relief under Title 28, United States Code, Section 2254. The Magistrate Judge has recommended that Mitchell's petition be dismissed for lack of subject matter jurisdiction. The Court, having reviewed de novo the petition, the record, the applicable law, the Magistrate's Report and Recommendation ("R&R"), and the petitioner's objections thereto, hereby approves the R&R and adopts it as its opinion.
R. Doc. 14.
In his objection, Petitioner erroneously refers to his parole revocation as a collateral consequence of the challenged conviction. As the Magistrate Judge emphasized, the challenged conviction did not occur until after Petitioner's parole revocation and therefore could not form the basis for the revocation.
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. Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." 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).
Rules Governing Section 2254 Proceedings, Rule 11(a).
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Petitioner's application does not satisfy this standard. For the reasons articulated by the Magistrate Judge, this Court is without jurisdiction to entertain his petition.
For the foregoing reasons, the Court DENIES Payne's petition for federal habeas corpus relief for lack of subject matter jurisdiction and DENIES the issuance of a certificate of appealability.
New Orleans, Louisiana, this 21st day of January, 2013.