THOMAS v. BARFIELD

Filing 42

ORDER DENYING THE PETITION AND DENYING A CERTIFICATE OF APPEALABILITY re adopting 40 Report and Recommendations. 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 8/24/2017. (jcw)

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

JUSTIN LEE THOMAS,
Petitioner,
v.

CASE NO. 5:15cv114-RH/CJK

JOHN A. BARFIELD,
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. 40, and
the objections, ECF No. 41. 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.
The objections assert that the report and recommendation does not address
the petitioner’s claim that his attorney rendered ineffective assistance by failing to
file a motion to compel the state to provide discovery. The record indicates, and
the petitioner does not deny, that the state provided at least some discovery. The
Case No. 5:15cv114-RH/CJK

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petitioner has not identified anything the state failed to provide. Moreover, as
correctly set out in the report and recommendation, the petitioner confessed to law
enforcement and ultimately pleaded guilty in exchange for a more favorable
sentence than might have been entered had he been convicted at trial. The
petitioner has not alleged that moving to compel discovery would have affected
either his decision to plead guilty or the agreed sentence.
The petitioner’s assertion seems to be, instead, that the attorney should have
moved to compel discovery sooner so that the attorney would have been prepared
for trial sooner and thus could have filed a demand for speedy trial. But again as
correctly set out in the report and recommendation, the record does not support the
assertion that a demand for a speedy trial would have made any difference. 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). The petitioner has shown neither.
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.
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.”

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3. A certificate of appealability is denied.
4. The clerk must close the file.
SO ORDERED on August 24, 2017.
s/Robert L. Hinkle
United States District Judge

Case No. 5:15cv114-RH/CJK