TRAVIS v. STATE OF FLORIDA

Filing 24

ORDER DENYING THE PETITION AND DENYING A CERTIFICATE OF APPEALABILITY - The Report and Recommendation 20 is ACCEPTED. The clerk must enter judgment stating, "The petition is DENIED with prejudice." A certificate of appealability is DENIED. Signed by JUDGE ROBERT L HINKLE on 2/19/2012. (erl)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

DARRELL TRAVIS,
Petitioner,
v.

CASE NO. 4:09cv327-RH/WCS

KENNETH S. TUCKER,
Respondent.
_________________________________/

ORDER DENYING THE PETITION AND
DENYING A CERTIFICATE OF APPEALABILITY

This petition for a writ of habeas corpus under 28 U.S.C. § 2254 is before
the court on the magistrate judge’s report and recommendation, ECF No. 20, and
the objections, ECF No. 23. The objections include nothing of substance but
instead incorporate by reference papers that were filed before entry of the report
and recommendation. The objections and thus are insufficient to preserve any
issues. But this makes no difference; I would reach the same result on de novo
review. The report and recommendation is correct and is adopted as the court’s
opinion.

Case No. 4:09cv327-RH/WCS

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Rule 11 of the Rules Governing § 2254 Cases requires a district court to
“issue or deny a certificate of appealability when it enters a final order adverse to
the applicant.” Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” See Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880,
893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting
out the standards applicable to a § 2254 petition on the merits). As the Court said
in Slack:
To obtain a COA under § 2253(c), a habeas prisoner must make a
substantial showing of the denial of a constitutional right, a
demonstration that, under Barefoot, includes showing that reasonable
jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented were “ ‘adequate to deserve encouragement to proceed
further.’ ”
Slack, 529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in
order to obtain a certificate of appealability when dismissal is based on procedural
grounds, a petitioner must show, “at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id. at 484.
The petitioner has not made the required showing.

Case No. 4:09cv327-RH/WCS

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For these reasons,
IT IS ORDERED:
1. The report and recommendation is ACCEPTED.
2. The clerk must enter judgment stating, “The petition is DENIED with
prejudice.”
3. A certificate of appealability is DENIED.
4. The clerk must close the file.
SO ORDERED on February 19, 2012.
s/Robert L. Hinkle
United States District Judge

Case No. 4:09cv327-RH/WCS