JOSEPH v. SECRETARY OF FLORIDA DEPARTMENT OF CORRECTIONS

Filing 15

ORDER DENYING THE PETITION AND DENYING A CERTIFICATE OF APPEALABILITY - The 14 report and recommendation is ACCEPTED. The clerk must enter judgment stating, "The petition is DENIED with prejudice." The clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 2/2/2015. (tdl)

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

STANDLEY JOSEPH,
Petitioner,
v.

CASE NO. 4:13cv550-RH/GRJ

SECRETARY, DEPARTMENT OF
CORRECTIONS,
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. 14. No
objections have been filed. The report and recommendation is correct and is
adopted as the court’s opinion.
A more recent decision consistent with the result on equitable tolling is
Holland v. Florida, 560 U.S. 631, 649 (2010) (“We have previously made clear
that a ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance

Case No. 4:13cv550-RH/GRJ

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stood in his way’ and prevented timely filing.”) (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)). See also McQuiggen v. Perkins, 133 S. Ct. 1924, 1931
(2013) (citing Holland); Damren v. Florida, No. 13–15017, 2015 WL 253285
(11th Cir. Jan. 21, 2015).
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.’ ”
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

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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
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 petition is DENIED with
prejudice.”
3. A certificate of appealability is DENIED.
4. The clerk must close the file.
SO ORDERED on February 2, 2015.
s/Robert L. Hinkle
United States District Judge
Case No. 4:13cv550-RH/GRJ