Robinson v. Giles

Filing 17

ORDER ADOPTING the 16 AMENDED REPORT AND RECOMMENDATIONS. It is ORDERED that this action be and is hereby DISMISSED due to Petitioner's failure to comply with 28 U.S.C. § 2244(b)(3)(A) and that Petitioner is not entitled to a certificate of appealability. Signed by Chief Judge William H. Steele on 3/1/10. Copy mailed to Petitioner. (tgw)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION CHARLES ROBINSON, Petitioner, vs. J. C. GILES, Respondent. : : : : : ORDER After due and proper consideration of all portions of this file deemed relevant to the issue raised, and there having been no objections filed, the Report and Recommendation of the Magistrate Judge made under 28 U.S.C. §636(b)(1)(B) is ADOPTED as the opinion of this Court. It is ORDERED that this action be and is hereby CIVIL ACTION 09-00488-WS-B

DISMISSED due to Petitioner's failure to comply with 28 U.S.C. § 2244(b)(3)(A). Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, "[t]he district court it must issue a or deny a certificate adverse to of the

appealability

when

enters

final

order

applicant." Rule 11(a) of the Rules Governing 2254 Cases (December 1, 2009). "A certificate of appealability may issue only where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a habeas

petition is dismissed on procedural grounds, such as in the instant case, without reaching the merits of any underlying constitutional

claim,

"a COA should issue [only] when the prisoner shows...that

jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel,

529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000); see Miller -EL v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039, 154 L.Ed. 2d 931 (2003); Farris v. U.S., 333 F.3d 1211, 1216 (11th Cir. 2003)("Without authorization, the district court lacks

jurisdiction to consider a second or successive petition."). Under the facts of this case, a reasonable jurist could not conclude either that this Court is in error in dismissing the instant petition or that Petitioner should be allowed to proceed further. Slack, 529 U.S. at 484, 120 S. Ct. at 1604. Accordingly, it is

ORDERED that because reasonable jurists could not debate whether Petitioner's petition should be dismissed, he is not entitled to a certificate of appealability. DONE this 1st day of March, 2010.

s/WILLIAM H. STEELE CHIEF UNITED STATES DISTRICT JUDGE