FRYSON v. CREWS et al
Filing
6
ORDER DENYING THE PETITION AND DENYING A CERTIFICATE OF APPEALABILITY. ACCEPTING 5 Report and Recommendation. The clerk must enter judgment stating, The petition is DISMISSED for lack of jurisdiction. A certificate of appealability is DENIED. Leave to proceed in forma pauperis is DENIED. The clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 2/18/2014. (pll)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
MAURICE FRYSON,
Petitioner,
v.
CASE NO. 4:13cv658-RH/CAS
MICHAEL D. CREWS et al.,
Respondents.
_________________________________/
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. 5. 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.” 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);
Case No. 4:13cv658-RH/CAS
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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.
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
Case No. 4:13cv658-RH/CAS
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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 DISMISSED
for lack of jurisdiction.”
3. A certificate of appealability is DENIED.
4. Leave to proceed in forma pauperis is DENIED.
5. The clerk must close the file.
SO ORDERED on February 18, 2014.
s/Robert L. Hinkle
United States District Judge
Case No. 4:13cv658-RH/CAS
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