HAYES v. DEPARTMENT OF CORRECTIONS
Filing
8
ORDER DISMISSING PETITION - The Report and Recommendations 7 is ACCEPTED. "The petition is DISMISSED with prejudice." A certificate of appealability is DENIED. Signed by JUDGE ROBERT L HINKLE on 4/19/2011. (dlt)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
DEVIN C. HAYES,
Petitioner,
v.
CASE NO. 4:10cv339-RH/WCS
DEPARTMENT OF CORRECTIONS,
Respondent.
_________________________________/
ORDER DISMISSING 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. 7. No
objections have been filed. The report and recommendation is correct and is
adopted as the court’s opinion.
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 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, 123 S. Ct. 1029,
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154 L. Ed. 2d 931 (2003) (explaining the meaning of this term); Slack v. McDaniel,
529 U.S. 473, 483-84, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) (same); Barefoot
v. Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983); see
also Williams v. Taylor, 529 U.S. 362, 402-13, 120 S. Ct. 1495, 146 L. Ed. 2d 389
(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: 4:10cv339-RH/WCS
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2. The clerk must enter judgment stating, “The petition is DISMISSED with
prejudice.”
3. A certificate of appealability is DENIED.
4. The clerk must close the file.
SO ORDERED on April 19, 2011.
s/Robert L. Hinkle
United States District Judge
Case No: 4:10cv339-RH/WCS
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