REED v. FLORIDA PAROLE COMMISSION
Filing
32
ORDER denying 28 --motion for leave to appeal in forma pauperis; denying 31 --motion for certificate of appealability. Signed by Judge Steven D. Merryday on 5/27/2011. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LOUIS REED, JR.,
Petitioner,
v.
Case No. 8:10-cv-2107-T-23EAJ
SECRETARY, Department of Corrections,
Respondent.
/
ORDER
Reed requests (Doc. 31) a certificate of appealability. Rule 11(a), Rules
Governing Section 2254 Cases, requires a district court to "issue or deny a certificate of
appealability when it enters a final order adverse to the applicant." As stated in Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000):
To obtain a COA under § 2254(c), a petitioner must make a substantial
showing of the denial of a constitutional right, a demonstration that, under
Barefoot, includes showing 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 were "'adequate to deserve
encouragement to proceed further.'" Barefoot, supra, at 893, and n.4, 102
S. Ct. 3383 ("sum[ming] up" the "substantial showing" standard).
When the district court denies a habeas petition on procedural grounds
without reaching the prisoner's underlying constitutional claim, a COA
should issue when the prisoner shows, at least, 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.
This construction gives meaning to Congress' requirement that a prisoner
demonstrate substantial underlying constitutional claims and is in
conformity with the meaning of the "substantial showing" standard
provided in Barefoot, supra, at 893, and n.4, 102 S. Ct. 3383 . . . .
An applicant need not show probable success on appeal, but the issuance of a
certificate of appealability entails more than "mere good faith" or only the "absence of
frivolity." As stated in Miller-El v. Cockrell, 537 U.S. 322, 338 (2003):
We do not require petitioner to prove, before the issuance of a COA, that
some jurists would grant the petition for habeas corpus. Indeed, a claim
can be debatable even though every jurist of reason might agree, after the
COA has been granted and the case has received full consideration, that
petitioner will not prevail. As we stated in Slack [v. McDaniel, 529 U.S.
473 (2000)], "[w]here a district court has rejected the constitutional claims
on the merits, the showing required to satisfy § 2253(c) is straightforward:
The petitioner must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims debatable or
wrong." 529 U.S. at 484, 120 S. Ct. 1595.
Reed's petition for the writ of habeas corpus was denied on the merits. Because
jurists of reason would not fairly debate whether the petition states a valid claim of the
denial of a constitutional right, a certificate of appealability is unwarranted.
Accordingly, request for a certificate of appealability (Doc. 31) is DENIED.
Reed's motion for leave to proceed in forma pauperis on appeal (Doc. 28) is DENIED.
Reed must pay the full $455 appellate filing fee without installments unless the circuit
court allows Reed to proceed in forma pauperis.
ORDERED in Tampa, Florida, on May 27, 2011.
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