MARTENS v. HALLEY et al

Filing 39

ORDER - DENYING 32 MOTION for Certificate of Appealability filed by STEPHEN M MARTENS. Signed by District Judge M CASEY RODGERS on March 19, 2009. (kvg)

Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION STEPHEN M. MARTENS, Petitioner, vs. WARDEN CHARLES HALLEY, et al., Respondents. / ORDER This cause is before the court on Petitioner's notice of appeal, construed as a motion for certificate of appealability. 1 (Docs. 31, 32.) 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). After 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 order dated March 16, 2009 (doc. 36) adopting and incorporating the Magistrate Judge's Report and Recommendation filed on January 29, 2009 (doc. 28), 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. 31, 32) is DENIED and no certificate shall issue. DONE and ORDERED this 19th day of March, 2009. Case No: 3:07cv323/MCR/EMT

s/

M. Casey Rodgers

M. CASEY RODGERS UNITED STATES DISTRICT JUDGE

T h e Eleventh Circuit instructed in Edwards v. United States, 114 F.3d 108 3 (19 9 7 ) , that district courts m us t treat notic es of a pp ea l in Section 2254 action s as application s for certific ate s of ap pe ala bility.

1