HARDY v. REID

Filing 30

ORDER DENYING THE 1 AMENDED PETITION AND DENYING A CERTIFICATE OF APPEALABILITY - The clerk must enter judgment stating, "The amended petition is DENIED with prejudice." A certificate of appealability is DENIED. The clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 11/11/2015. (tdl)

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

ANTHONY LAMAR HARDY,
Petitioner,
v.

CASE NO. 4:13cv137-RH/CAS

JULIE L. JONES, SECETARY,
FLORIDA DEPARTMENT OF
CORRECTIONS,
Respondent.
_________________________________/
ORDER DENYING THE AMENDED PETITION AND
DENYING A CERTIFICATE OF APPEALABILITY
This amended 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. 29. 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.
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
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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.’ ”
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. 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

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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.
For these reasons,
IT IS ORDERED:
1. The report and recommendation is ACCEPTED.
2. The clerk must enter judgment stating, “The amended petition is
DENIED with prejudice.”
3. A certificate of appealability is DENIED.
4. The clerk must close the file.
SO ORDERED on November 11, 2015.
s/Robert L. Hinkle
United States District Judge

Case No. 4:13cv137-RH/CAS