Barnes v. Florida Department Of Corrections et al

Filing 3

ORDER dismissing case with prejudice. Any pending motions are denied as moot. The Clerk is directed to close this case. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr on 10/29/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JAMES R. BARNES,
Petitioner,
v.

Case No: 8:14-cv-2385-T-30TGW

FLORIDA DEPARTMENT OF
CORRECTIONS and MICHAEL
CREWS,
Respondents.

ORDER OF DISMISSAL
Before the Court is the Petition for Writ of Habeas Corpus (Dkt. #1) and
Memorandum in Support (Dkt. #2). Upon review, the Court finds that Barnes previously
filed a § 2254 petition (2:11-cv-362-JES-CM, Middle District of Florida) which was
denied. In the present petition, denominated a § 2241 petition, Barnes seeks to raise
ineffective assistance of counsel claims from his state case. He contends Martinez v.
Ryan, 132 S.Ct. 1309 (2012) authorizes this Court to entertain those claims in a § 2241
petition. Barnes is wrong. Martinez dealt with whether a claim could survive procedural
default and be brought in a timely § 2254 petition. Martinez does not authorize the
untimely raising of the claim or the circumvention of the requirement to get 11th Circuit
approval prior to bringing a second or successive § 2254 petition.
It is therefore ORDERED AND ADJUDGED as follows:
1.

This cause is dismissed with prejudice.

2.

Any pending motions are denied as moot.

3.

The Clerk is directed to close this case.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL
IN FORMA PAUERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district
court must first issue a certificate of appealability. Id. “A certificate of appealability may
issue … only if the applicant has made a substantial showing of the denial of a
constitutional right.” Id. at § 2253(c)(2). To make such a showing, Petitioner “must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004)(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented
were ‘adequate to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)).
Petitioner has not made the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not
entitled to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida, this 29th day of October, 2014.

Copies furnished to:
Counsel/Parties of Record
F:\Docs\2014\14-cv-2385 dismiss 2241.docx

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