Colvin v. Tanner

W.D. Louisiana

Colvin v. Tanner

DecidedFebruary 2, 2021

Docket5:19-cv-00923

StatusUnknown

This text of Colvin v. Tanner (Colvin v. Tanner) is published on Counsel Stack Legal Research, covering District Court, W.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Colvin v. Tanner, (W.D. La. 2021).

Pincite

Opinion

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION

JAMES L. COLVIN CIVIL ACTION NO. 19-923-P VERSUS JUDGE FOOTE WARDEN ROBERT TANNER MAGISTRATE JUDGE HORNSBY J U D G M E N T Petitioner has filed a motion to amend [Record Document 16] attempting to assert

a violation of the rule enunciated in McCoy v. Louisiana, 138 S. Ct. 1500 (2018). He contends that this is permitted by 28 U.S.C. § 2244(b)(2)(A), which allows a court to hear a claim presented in a second or successive habeas petition when the claim “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” McCoy has not been made retroactively

applicable, however, and therefore § 2244(b)(2)(A) does not authorize Petitioner to bring this claim. Smith v. Stein, 982 F.3d 229, 235 (4th Cir. 2020); Christian v. Thomas, --- F.3d –, No. 19-70036, 2020 WL 7331890, at *7 (9th Cir. Dec. 14, 2020). Because Petitioner cannot add a McCoy claim to his complaint, his motion to amend is DENIED. For the reasons stated in the Report and Recommendation of the Magistrate Judge

previously filed herein, and after an independent review of the record, including written objections filed by Petitioner, and determining that the findings are correct under the applicable law, IT IS ORDERED that Petitioner's application for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. Rule 11 of the Rules Governing Section 2254 Proceedings for the U.S. District Courts requires the district court to issue or deny a certificate of appealability when it enters a final order adverse to the applicant. The court, after considering the record in this case and the standard set

forth in 28 U.S.C. Section 2253, denies a certificate of appealability. Jurists of reason would not find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this court was correct in its procedural ruling. See Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000). THUS DONE AND SIGNED, in chambers, in Shreveport, Louisiana, on this 2nd February _____ day of JaXnxuxaxrxy 2021.

ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE

Free access — add to your briefcase to read the full text and ask questions with AI

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION

JAMES L. COLVIN CIVIL ACTION NO. 19-923-P VERSUS JUDGE FOOTE WARDEN ROBERT TANNER MAGISTRATE JUDGE HORNSBY J U D G M E N T Petitioner has filed a motion to amend [Record Document 16] attempting to assert

a violation of the rule enunciated in McCoy v. Louisiana, 138 S. Ct. 1500 (2018). He contends that this is permitted by 28 U.S.C. § 2244(b)(2)(A), which allows a court to hear a claim presented in a second or successive habeas petition when the claim “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” McCoy has not been made retroactively

applicable, however, and therefore § 2244(b)(2)(A) does not authorize Petitioner to bring this claim. Smith v. Stein, 982 F.3d 229, 235 (4th Cir. 2020); Christian v. Thomas, --- F.3d –, No. 19-70036, 2020 WL 7331890, at *7 (9th Cir. Dec. 14, 2020). Because Petitioner cannot add a McCoy claim to his complaint, his motion to amend is DENIED. For the reasons stated in the Report and Recommendation of the Magistrate Judge

previously filed herein, and after an independent review of the record, including written objections filed by Petitioner, and determining that the findings are correct under the applicable law, IT IS ORDERED that Petitioner's application for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. Rule 11 of the Rules Governing Section 2254 Proceedings for the U.S. District Courts requires the district court to issue or deny a certificate of appealability when it enters a final order adverse to the applicant. The court, after considering the record in this case and the standard set

forth in 28 U.S.C. Section 2253, denies a certificate of appealability. Jurists of reason would not find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this court was correct in its procedural ruling. See Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000). THUS DONE AND SIGNED, in chambers, in Shreveport, Louisiana, on this 2nd February _____ day of JaXnxuxaxrxy 2021.

ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE

Cite This Page — Counsel Stack

Bluebook (online)

Colvin v. Tanner, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colvin-v-tanner-lawd-2021.

Opinion

Related

Cite This Page — Counsel Stack