MCGEE v. JONES

Filing 21

ORDER DENYING THE PETITION AND DENYING A CERTIFICATE OF APPEALABILITY signed by JUDGE ROBERT L HINKLE on 9/27/17. The 17 REPORT AND RECOMMENDATION is adopted and the 14 Motion to Dismiss is granted. A certificate of appealability is denied. The Clerk is instructed to enter judgment and close the file. (tss)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
BERNARD C. MCGEE,
Petitioner,
v.

CASE NO. 4:16cv659-RH/CJK

JULIE L. JONES,
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. 17. 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); Slack

Case No. 4:16cv659-RH/CJK

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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 not made the required showing. This order thus denies a
certificate of appealability.
For these reasons,
IT IS ORDERED:
1. The report and recommendation is accepted.
2. The motion to dismiss, ECF No. 14, is granted.

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3. The clerk must enter judgment stating, “The petition is dismissed for lack
of jurisdiction.”
4. A certificate of appealability is denied.
5. The clerk must close the file.
SO ORDERED on September 27, 2017.
s/Robert L. Hinkle
United States District Judge

Case No. 4:16cv659-RH/CJK