PARKER v. CREWS

Filing 54

ORDER DENYING THE PETITION AND DENYING A CERTIFICATE OF APPEALABILITY re 52 Report and Recommendation. 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 12/26/2016. (jcw)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

MICHAEL TYRONE PARKER,
Petitioner,
v.

CASE NO. 5:14cv88-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. 52, and
the objections, ECF No. 53. 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, with these additional notes.
First, the result would be the same even if a federal court was required to
“look through” an unexplained state appellate decision to the reasoning of a lower
court that explained its decision—that is, even if the dissenters, rather than the

Case No. 5:14cv88-RH/CJK

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majority, had prevailed in Wilson v. Warden, Georgia Diagnostic Prison, 834 F.3d
1227 (11th Cir. 2016) (en banc).
Second, the result would be the same even if the petitioner had not
procedurally defaulted—that is, even if this court could properly reach on the
merits—the issue of whether officers properly entered the petitioner’s motel room.
The record shows that the entry was proper. And even more clearly, the state
courts’ rejection of the petitioner’s claims related to the entry was not contrary to
or an unreasonable application of clearly established federal law and was not based
on an unreasonable determination of the facts in light of the evidence presented in
state court. See 28 U.S.C. § 2254(d)(1)-(2).
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
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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.
For these reasons,
IT IS ORDERED:
1. The report and recommendation is accepted.

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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 December 26, 2016.
s/Robert L. Hinkle
United States District Judge

Case No. 5:14cv88-RH/CJK