DILLON v. MCNEIL

Filing 33

ORDER DENYING PETITION. ACCEPTING 28 REPORT AND RECOMMENDATION. The clerk must enter judgment stating, The petition is DENIED with prejudice. DENYING 32 Motion for Certificate of Appealability. Signed by JUDGE ROBERT L HINKLE on 9/9/11. (pll)

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

ROBERT J. DILLON,
Petitioner,
v.

CASE NO. 4:10cv22-RH/WCS

EDWIN G. BUSS,
Respondent.
_______________________________/

ORDER DENYING PETITION

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. 28, and
the objections, ECF No. 31. I have reviewed de novo the issues raised by the
objections. The report and recommendation is correct and is adopted as the court's
opinion.
The petitioner has moved for a certificate of appealability, and 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.” A
certificate of appealability may be issued only if a petitioner “has made a

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substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). See Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003) (explaining the
meaning of this term); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (same);
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.” Slack, 529 U.S. at 484.
The petitioner has not made the required showing.
For these reasons,
IT IS ORDERED:
1. The report and recommendation is ACCEPTED.
Case No. 4:10cv22-RH/WCS

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2. The clerk must enter judgment stating, “The petition is DENIED with
prejudice.”
3. The motion for a certificate of appealability, ECF No. 32, is DENIED.
4. The clerk must close the file.
SO ORDERED on September 9, 2011.
Robert L. Hinkle
United States District Judge

Case No. 4:10cv22-RH/WCS