Floyd v. The State of Florida

Filing 24

REPORT RECOMMENDING DENIAL OF CERTIFICATE OF APPEALABILITY STATE HABEAS CORPUS AND MOTION FOR IFP re 21 denying MOTION for Certificate of Appealability filed by Byron Floyd and denying 22 MOTION for Leave to Proceed in forma pauperis on appeal filed by Byron Floyd. Recommending denying DE#'s 21 and 22. Objections to R&R due by 5/7/2009. Signed by Magistrate Judge Patrick A. White on 4/16/2009. (tw)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-21056-CIV-GRAHAM MAGISTRATE JUDGE P.A. WHITE

BYRON FLOYD, Petitioner, v. WALTER MCNEIL, Respondent. This Cause is before

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REPORT RECOMMENDING DENIAL OF CERTIFICATE OF APPEALABILITY STATE HABEAS CORPUS AND MOTION FOR IFP (de#21 & 22)

the

Court

upon

the

petitioner's

application for a certificate of appealability (DE#21) pursuant to 28 U.S.C. §2253 and Fed.R.App.P. 22(b), both as amended April 24, 1996, and motion to proceed in forma pauperis on appeal (DE#22). The motions have been referred to the Undersigned Magistrate Judge on December 5, 2007, for consideration and report.

A certificate of appealability shall not issue unless the Court rules that upon one or more specific issues the petitioner has made a substantial showing of the denial of a constitutional right.

To merit a certificate of appealability, the appellant must show that reasonable jurists would find debatable both (1) the merits of an underlying claim, and (2) the procedural issue he seeks to raise. See 28 U.S.C. §2253(c)(2); Slack v. McDaniel, 529

U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

After reevaluation of the claims, if the Court grants such a certificate it must state which specific issue or issues satisfy

the requirement that the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §2253(c)(2) and (3). Review of the file in this case reveals that no such showing

has been made. The petitioner's petition for writ of habeas corpus was denied on the merits in a detailed Report entered by the Undersigned Magistrate Judge. The petitioner's claims, as stated in the Magistrate Judge's Report and Recommendation are contradicted by the record.

It is therefore recommended that the Court deny the motion for certificate of appealability. (DE#21)

The

Undersigned

recommends

that

the

application

for

certificate of appealability be denied, and it is

therefore

recommended, pursuant to Fed.R.App.P. 24(a) that the motion to proceed in forma pauperis on appeal be denied (DE#22) because the appeal is not taken in good faith, there having been no substantial showing of the denial of a constitutional right.

Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report. Dated this 16th day of April, 2009.

UNITED STATES MAGISTRATE JUDGE

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cc:

Byron Floyd, Pro Se DC#072934 South Bay Correctional Facility Address of record Attorney of Record Appeals Section United States District Court

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