RUTH v. SECRETARY DEPARTMENT OF CORRECTIONS STATE OF FLORIDA

Filing 22

ORDER SUBSTITUTING RESPONDENTS, DENYING THE PETITION, AND DENYING A CERTIFICATE OF APPEALABILITY. Mark S. Inch is substituted as the respondent Secretary of the Florida Department of Corrections. The case style is amended accordin gly. The 20 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 02/28/2019. (rcb)

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

DARRYL D. RUTH,
Petitioner,
v.

CASE NO. 4:18cv92-RH-CAS

MARK S. INCH, Secretary,
Florida Department of Corrections,
Respondent.
_________________________________/

ORDER SUBSTITUTING RESPONDENTS,
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. 20, and
the objections, ECF No. 21. I have reviewed de novo the issues raised by the
objections.
This order denies the petition for the reasons set out in the report and
recommendation. The order also substitutes the respondent Mark S. Inch, the
current Secretary of the Florida Department of Corrections, for his predecessor.
See Fed. R. Civ. P. 25(d).
Case No. 4:18cv92-RH-CAS

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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, 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.

Case No. 4:18cv92-RH-CAS

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The petitioner has not made the required showing. This order thus denies a
certificate of appealability.
For these reasons,
IT IS ORDERED:
1. Mark S. Inch is substituted as the respondent Secretary of the Florida
Department of Corrections. The case style is amended accordingly.
2. The report and recommendation is accepted.
3. The clerk must enter judgment stating, “The petition is denied with
prejudice.”
4. A certificate of appealability is denied.
5. The clerk must close the file.
SO ORDERED on February 28, 2019.
s/Robert L. Hinkle
United States District Judge

Case No. 4:18cv92-RH-CAS