GAINES v. CREWS et al

Filing 19

ORDER DENYING THE PETITION AND DENYING A CERTIFICATE OF APPEALABILITY - The report and recommendation is accepted. The clerk must enter judgment stating, "The petition is denied with prejudice." A certificate of appeala bility is granted on this issue: whether this court has properly denied without a hearing the petitioner's claim that his waiver of a hearing before the Florida Parole Commission was involuntary and that the Commission's revocation of his conditional release without a hearing thus violated the Due Process Clause. The clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 6/13/2017. (tdl)

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

TOMMY LEE GAINES,
Petitioner,
v.

CASE NO. 4:14cv178-RH/CAS

JULIE L. JONES etc., 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. 17, and
the objections, ECF No. 18. 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

Case No. 4:14cv178-RH/CAS

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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, 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 made the required showing on only a single issue, as set
out below.
For these reasons,
IT IS ORDERED:

Case No. 4:14cv178-RH/CAS

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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 granted on this issue: whether this court
has properly denied without a hearing the petitioner’s claim that his waiver of a
hearing before the Florida Parole Commission was involuntary and that the
Commission’s revocation of his conditional release without a hearing thus violated
the Due Process Clause.
4. The clerk must close the file.
SO ORDERED on June 13, 2017.
s/Robert L. Hinkle
United States District Judge

Case No. 4:14cv178-RH/CAS