OWENS v. SECRETARY DEPARTMENT OF CORRECTIONS

Filing 27

ORDER DENYING THE PETITION AND DENYING A CERTIFICATE OF APPEALABILITY re adopting 20 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 6/30/2017. (jcw)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
CHRISTOPHER OWENS,
Petitioner,
v.

CASE NO. 5:14cv266-RH/GRJ

SECRETARY, DEP’T 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. 20, and
the objections, ECF No. 25. 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 two additional notes.
First, the petitioner asserts his attorney rendered ineffective assistance when
he referred to a witness—the female confidential informant who arranged the drug
transaction at which the petitioner appeared and was arrested—as a “two-legged
orifice.” The reference was unprofessional, probably sexist, and could not have
Case No. 5:14cv266-RH/GRJ

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been helpful. But to prevail on an ineffective-assistance claim, a petitioner must
show both deficient performance and prejudice. See Strickland v. Washington, 466
U.S. 668, 687 (1984). Especially in light of the overwhelming evidence of the
petitioner’s guilt, the defense attorney’s language could not have affected the
outcome. The state courts’ rejection of this claim was not contrary to, and did not
involve an unreasonable application of, clearly established federal law, and the
ruling was not based on an unreasonable determination of the facts in light of the
state-court record. So under the Antiterrorism and Effective Death Penalty Act, the
petitioner is not entitled to relief in this court. See 28 U.S.C. § 2254(d)(1)-(2).
Second, the petitioner says the attorney rendered ineffective assistance by
failing to introduce evidence that the telephone the petitioner allegedly used when
speaking to the confidential informant was not subscribed to the petitioner.
Evidence of this would have been relevant and admissible. But there again is no
reasonable possibility that this evidence would have affected the outcome. The
petitioner is not entitled to relief on this claim.
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

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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.

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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 June 30, 2017.
s/Robert L. Hinkle
United States District Judge

Case No. 5:14cv266-RH/GRJ