DURHAM v. CRIST et al

Filing 35

ORDER Denying 31 Motion for Certificate of Appealability. Signed by SENIOR JUDGE ROGER VINSON on 07/28/2009. (jmd)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION BOBBY R. DURHAM, Petitioner, vs. CHARLIE CRIST, et al., Respondents. ___________________________________/ ORDER This cause is before the court on Petitioner's Notice of Appeal, construed as a motion for certificate of appealability (Docs. 30, 31).1 Unless a certificate of appealability is issued, Petitioner may not take an appeal from the final order denying 2254 relief. See 28 U.S.C. 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). Such a certificate may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). Upon review of the file, the court concludes that because Petitioner has not made a substantial showing of the denial of a constitutional right, and for the reasons set forth in this court's July 6, 2009 Order (Doc. 28) adopting and incorporating the Magistrate Judge's Report and Recommendation filed on May 26, 2009 (Doc. 22), a certificate of appealability will be denied. Accordingly, it is ORDERED: Petitioner's notice of appeal, construed as a motion for certificate of appealability (Docs. 30, 31), is DENIED and no certificate shall issue. DONE AND ORDERED this 28th day of July 2009. /s/ Roger Vinson ROGER VINSON SENIOR UNITED STATES DISTRICT JUDGE Case No: 3:06cv196/RV/EMT The Eleventh Circuit instructed in Edwards v. United States, 114 F.3d 1083 (11th Cir. 1997) that district courts must treat notices of appeal in Section 2254 actions as applications for certificates of appealability. 1

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