RUFFIN v. JONES

Filing 6

ORDER DENYING THE PETITION AND DENYING A CERTIFICATE OF APPEALABILITY - The 4 report and recommendation is accepted. The clerk must enter judgment stating, "The petition is denied with prejudice." A certificate of appealability is denied. The clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 5/24/2017. (tdl)

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

MICHAEL RUFFIN,
Petitioner,
v.

CASE NO. 4:17cv198-RH/CAS

JULIE L. JONES, 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. 4, and the
objections, ECF No. 5. 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.
As the report and recommendation correctly notes, a person in custody under
a state-court judgment may bring a second or successive petition collaterally
attacking the judgment only if the United States Court of Appeals authorizes the
filing. This petition must be dismissed because it is second or successive and has

Case No. 4:17cv198-RH/CAS

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not been authorized by the Court of Appeals. This court lacks jurisdiction over the
petition.
Parenthetically, it should be noted that the theory underlying the petition is
incorrect. The petitioner notes that in applying the one-year limitations period for a
§ 2254 petition, time during which a properly filed state-court application for
collateral review is pending is excluded. The petitioner asserts this includes the 90day period for seeking review by certiorari in the United States Supreme Court.
That is incorrect. The 90-day period for seeking review of a state-court decision on
direct appeal does not count against the one-year limitations period, because the
judgment of conviction does not become final until that period expires. But the 90day period for seeking certiorari review of a state-court decision on collateral
review is not excluded. See Lawrence v. Florida, 549 U.S. 327 (2007). This makes
no difference here because, either way, the court lacks jurisdiction over this
petition.
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

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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. 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.

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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 May 24, 2017.
s/Robert L. Hinkle
United States District Judge

Case No. 4:17cv198-RH/CAS