Jones v. Tillman

Filing 29

ORDER denying 23 Motion for Certificate of Appealability; finding as moot 27 Motion for Leave to Proceed in forma pauperis. Ordered by Judge Hugh Lawson on 9/17/2008. (nbp)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION DARRYL A. JONES, Petitioner, v. RANDY K. TILLMAN, Warden, Respondent. ______________________________ : : : : : : : : : Civil Action No. 5:07-cv-125 (HL) ORDER Petitioner, Darryl A. Jones, filed a Petition Under 28 U.S.C. 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1) on April 4, 2007. By Order (Doc. 19) entered July 22, 2008, the Petition was denied. Judgment (Doc. 20) was entered on July 22, 2008. Petitioner filed a Motion for Reconsideration (Doc. 21) on August 5, 2008, which was denied (Doc. 22) on August 7, 2008. On August 28, 2008, Petitioner filed a Notice of Appeal (Doc. 24) and a Motion for Certificate of Appealability (Doc. 23). Petitioner has also filed a Motion for Permission to Appeal in Forma Pauperis (Doc. 27). Section 2253(c) of Title 28 of the United States Code limits the right of a habeas corpus petitioner to seek appellate review of a denial of a 2254 petition. Under 2253(c), an appeal may only be taken if a circuit justice or judge issues a certificate of appealability, and the certificate may issue only if the applicant has made a substantial showing of the denial of a constitutional right. Courts have construed this standard to require "an appealing petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." Henry v. Dep't of Corr., 197 F.3d 1361, 1364 (11th Cir. 1999) (internal quotations and citations omitted). W hen tested under the foregoing standard, Petitioner's application must be denied. As discussed in detail in both the magistrate judge's recommendation and the Court's Order accepting the same, Petitioner's claims simply have not raised issues that this Court finds debatable or worthy of further encouragement. Accordingly, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. The Motion for Certificate of Appealability is denied. Having denied the Motion for Certificate of Appealability, the Court further finds that the Motion for Permission to Appeal In Forma Pauperis is moot. SO ORDERED, this the 17th day of September, 2008. s/ Hugh Lawson HUGH LAWSON, JUDGE mls 2

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