ADAMSON v. MCNEIL

Filing 44

ORDER ADOPTING 42 REPORT AND RECOMMENDATION. This case is DISMISSED without prejudice for Petitioner's failure to exhaust state remedies pursuant to 28 U.S.C. § 2254(b). A certificate of appealability is DENIED. Signed by SENIOR JUDGE ROGER VINSON on 2/16/10. (lcu)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION R. CASPER ADAMSON, Petitioner, vs. WALTER A. McNEIL, Respondent. ____________________________/ ORDER This cause comes on for consideration upon the magistrate judge's Report and Recommendation dated January 8, 2010 (Doc. 42). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). I have made a de novo determination of all timely filed objections. Having considered the Report and Recommendation, and any timely filed objections thereto timely filed, I have determined that the Report and Recommendation should be adopted. As amended effective December 1, 2009, § 2254 Rule 11(a) provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and if a certificate is issued "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rules Governing Section 2254 Cases 11(b). I find no substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483­84, 120 S. Ct. 1595, 1603­04, 146 L. Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, a certificate of appealability shall be denied. Case No.: 3:08cv202/RV/EMT

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Accordingly, it is now ORDERED as follows: 1. 2. 3. The magistrate judge's Report and Recommendation is adopted and incorporated by This case is DISMISSED without prejudice for Petitioner's failure to exhaust state A certificate of appealability is DENIED. DONE AND ORDERED this 16th day of February, 2010. reference in this order. remedies pursuant to 28 U.S.C. § 2254(b).

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

Case No. 3:08cv202/RV/EMT