United States District Court, E.D. Louisiana
S. VANCE UNITED STATES DISTRICT JUDGE
the Court are Blake Adams's petition for a writ of habeas
corpusand his objections to the Magistrate
Judge's Report and Recommendation that the petition be
dismissed with prejudice. The Court, having reviewed de
novo the petition, the record, the applicable law, the
Magistrate Judge's Report and Recommendation, and the
petitioner's objections, hereby approves the Magistrate
Judge's Report and Recommendation and adopts it as its
objections, Adams argues that he is actually
innocent. He contends that evidence of his factual
innocence excuses the procedural default on his prosecutorial
misconduct claim. “[A]ctual innocence, if proved,
serves as a gateway through which a petitioner may
pass” a procedural bar to habeas relief. McQuiggin
v. Perkins, 133 S.Ct. 1924, 1928 (2013). A claim of
actual innocence “permits review only in the
extraordinary case” where petitioner can show
“that more likely than not, in light of the new
evidence, no reasonable juror would find him guilty beyond a
reasonable doubt.” House v. Bell, 547 U.S.
518, 538 (2006).
does not meet this high standard. As an initial matter, he
has not shown that his claim is based upon new evidence.
McQuiggin, 133 S.Ct. 1924, 1933 (“The
miscarriage of justice exception, we underscore, applies to a
severely confined category: cases in which new evidence shows
‘it is more likely than not that no reasonable juror
would have convicted the petitioner.'”) (internal
citation omitted). Adams acknowledges that most of the
evidence referenced in his objections was part of the trial
record or within the possession of petitioner's trial
counsel. Adams also failed to raise a claim of
actual innocence before the Magistrate Judge.
the Court were to consider all the evidence presented by
Adams, he cannot show by a preponderance of evidence that
“no reasonable juror would find him guilty beyond a
reasonable doubt.” House, 547 U.S. at 538.
Adams seeks to undermine the character and credibility of his
victim and speculates that she may have doctored
evidence. He does not demonstrate that he is
innocent of the crimes charged.
objections, Adams further argues that the above-mentioned
evidence supports his claim of ineffective assistance of
counsel because his attorney should have used this evidence
at trial. For the reasons explained by the
Magistrate Judge in his detailed Report, Adams fails to show
that the state court's “decision that he could not
demonstrate deficient performance by his trial counsel
necessarily involved an unreasonable application of federal
law.” Cullen v. Pinholster, 563 U.S. 170, 190
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.” Rules Governing Section 2254
Proceedings, Rule 11(a). A court may issue a certificate of
appealability only if the petitioner makes “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Rules Governing
Section 2254 Proceedings, Rule 11(a) (noting that §
2253(c)(2) supplies the controlling standard). 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).
Adams has not made a substantial showing of a denial of a
constitutional right. The Magistrate Judge's Report and
Recommendation clearly and correctly disposes of each of
ORDERED that plaintiffs petition for habeas corpus
is DISMISSED WITH PREJUDICE. The Court will not issue a
certificate of appealability.
 R. Doc. 6.
 R. Doc. 21.