LOSEY v. MCNEIL

Filing 23

ORDER - DENYING 21 Motion for Certificate of Appealability filed by KIRK LOSEY. Signed by SENIOR JUDGE ROGER VINSON on December 4, 2008. (kvg)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION KIRK LOSEY, Petitioner, vs. WALTER A. McNEIL, Respondent. _______________________________________/ ORDER This cause is before the court on Petitioner's notice of appeal and motion for certificate of appealability (Docs. 20, 21). 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 the court's October 21, 2008 order (Doc. 16) adopting and incorporating the Magistrate Judge's Report and Recommendation filed on September 29, 2008 (Doc. 14), a certificate of appealability shall be denied. Accordingly, it is ORDERED: Petitioner's motion for certificate of appealability (Doc. 21) and notice of appeal (Doc. 20) are DENIED, and no certificate shall issue. DONE AND ORDERED this 4th day of December 2008. Case No: 3:08cv121/RV/EMT

/s/ Roger Vinson ROGER VINSON SENIOR UNITED STATES DISTRICT JUDGE