PEACOCK v. SECRETARY DEPARTMENT OF CORRECTIONS

Filing 16

ORDER DENYING THE PETITION AND DENYING A CERTIFICATE OF APPEALABILITY: The report and recommendation 15 is ACCEPTED. The clerk must enter judgment stating, The petition is DENIED with prejudice. A certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Signed by JUDGE ROBERT L HINKLE on 5/9/14. (amm)

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

DELFONTA PEACOCK,
Petitioner,
v.

CASE NO. 4:13cv122-RH/CAS

MICHAEL D. CREWS,
Respondent.
_____________________________/

ORDER DENYING THE PETITION AND
DENYING A CERTIFICATE OF APPEALABILITY

By petition for a writ of habeas corpus under 28 U.S.C. § 2254, Delfonta
Peacock challenges his Florida state-court conviction and sentence. The petition is
before the court on the magistrate judge’s report and recommendation, ECF No.
15. No objections have been filed.
I
The full procedural history is set out in the report and recommendation and
is not repeated here. Although Mr. Peacock pleaded guilty and was sentenced in
1997, an amended judgment—the one on which Mr. Peacock is now in custody—
was entered on October 23, 2009. Mr. Peacock appealed that judgment. The

Case No. 4:13cv122-RH/CAS

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Florida First District Court of Appeal affirmed the judgment by an order entered on
April 7, 2010. The mandate issued on May 4, 2010. The deadline for filing a
petition for a writ of certiorari in the United States Supreme Court was July 6,
2010 (90 days after the April 7 order).
The limitations period for filing a § 2254 petition is one year. See 28 U.S.C.
§ 2244(d)(1). Here the limitations period ran from July 6, 2010, the deadline for
filing a certiorari petition. See id. §2244(d)(1)(A) (stating that the limitations
period runs from the latest of four dates, including “the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for
seeking such review”) (emphasis added); Gonzalez v. Thaler, 132 S. Ct. 641, 65354 (2012) (holding that “the time for seeking such review” includes the time for
filing a petition for a writ of certiorari in the United States Supreme Court). The
period expired on July 6, 2011, because during the year ending at that time, no
properly filed state-court application for collateral relief was pending, nor did
anything else toll the limitations period. See 28 U.S.C. § 2244(d)(2). As properly
analyzed in the report and recommendation, Mr. Peacock’s assertion of equitable
tolling is unfounded.
In sum, this petition is untimely.
.

Case No. 4:13cv122-RH/CAS

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II
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.

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The petitioner has not made the required showing. This order thus denies a
certificate of appealability. Because the petitioner has not obtained—and is not
entitled to—a certificate of appealability, any appeal will not be taken in good
faith. I certify under Federal Rule of Appellate Procedure 24(a) that an appeal will
not be taken in good faith and that the petitioner is not otherwise entitled to
proceed on appeal in forma pauperis. But for the requirement to obtain a
certificate of appealability, leave to proceed on appeal in forma pauperis would be
granted.
III
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. Leave to appeal in forma pauperis is DENIED.
5. The clerk must close the file.
SO ORDERED on May 9, 2014.
s/Robert L. Hinkle
United States District Judge

Case No. 4:13cv122-RH/CAS