Thomas v. Giles et al (INMATE 1)

Filing 7

ORDER that 1. Petitioner's objection 5 be and the same is hereby OVERRULED; 2. The Recommendation of the Magistrate Judge 4 be and the same is hereby ADOPTED, APPROVED and AFFIRMED; 3. The Petitioner's 28 U.S.C. § 2254 petition for habeas corpus relief 1 be and the same is hereby DENIED; and 4. This cause be and the same is hereby DISMISSED in accordance with the provisions of 28 U.S.C. § 2244(b)(3)(A) because Thomas has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing this court to consider his successive habeas application as further set out in this order. Accordingly, a COA is DENIED in this case. Signed by Honorable Ira De Ment on 4/22/2011. (jg, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
DAVE THOMAS, #104278,
Petitioner,
v.
J.C. GILES, et al.,
Respondents.

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CASE NO. 3:11-CV-214-ID
(WO)

ORDER
Before the court are the Recommendation of the Magistrate Judge, (Doc. #4), and
Petitioner’s objection, (Doc. #5). Having conducted a de novo determination of those
portions of the Recommendation to which objections are made, it is CONSIDERED and
ORDERED as follows:
1.

Petitioner’s objection (Doc. #5) be and the same is hereby OVERRULED;

2.

The Recommendation of the Magistrate Judge (Doc. #4) be and the same is
hereby ADOPTED, APPROVED and AFFIRMED;

3.

The Petitioner’s 28 U.S.C. § 2254 petition for habeas corpus relief (Doc.
#1) be and the same is hereby DENIED; and

4.

This cause be and the same is hereby DISMISSED in accordance with the
provisions of 28 U.S.C. § 2244(b)(3)(A) because Thomas has failed to
obtain the requisite order from the Eleventh Circuit Court of Appeals

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authorizing this court to consider his successive habeas application.
Furthermore, a prisoner seeking relief under 28 U.S.C. § 2254 must obtain a
certificate of appealability (“COA”) before appealing the denial of his application for a writ
of habeas corpus. This court “must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Rule 11(a) to the Rules Governing Section 2254
Proceedings. This court should grant a COA only if the prisoner makes a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set
forth in the Recommendation of the Magistrate Judge, and in consideration of the standards
enunciated in Slack v. McDaniel, 529 U.S. 473, 482–84 (2000), the court finds that the
Petitioner has failed to make the requisite showing. Accordingly, a COA is DENIED in this
case.
DONE this the 22nd day of April, 2011.
/s/ Ira DeMent
SENIOR UNITED STATES DISTRICT JUDGE

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