DOUGLAS v. TAYLOR
ORDER ADOPTING as amended 9 Report and Recommendations. Douglas's § 2254 petition is DENIED, and a certificate of appealability is DENIED. Any motion to proceed in forma pauperis on appeal is DENIED. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 10/18/2017. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CIVIL ACTION NO. 5:17-CV-103 (MTT)
United States Magistrate Judge Stephen Hyles recommends that Petitioner
Mickey Douglas’s 28 U.S.C. § 2254 petition be denied as procedurally defaulted. Doc.
9 at 1, 6. Additionally, the Magistrate Judge recommends denying a certificate of
appealability (COA). Id. at 6. Douglas has not objected to the Recommendation. The
Court has reviewed the Recommendation and adopts, as amended herein, the findings,
conclusions, and recommendations of the Magistrate Judge.
The Court agrees with the Magistrate Judge’s finding that the lone claim in
Douglas’s § 2254 petition is procedurally defaulted. Id. at 1, 6. The Court also notes
that Douglas has failed to establish “cause for the failure to properly present the claim
[in state court] and actual prejudice, or that the failure to consider the claim would result
in a fundamental miscarriage of justice.” Conner v. Hall, 645 F.3d 1277, 1287 (11th Cir.
2011) (citing Wainwright v. Sykes, 433 U.S. 72, 81-88 (1977) and Marek v. Singletary,
62 F.3d 1295, 1301-02 (11th Cir. 1995)).
Further, the Court agrees with the Magistrate Judge’s recommendation that a
COA be denied. As stated in the Recommendation, a “[COA] may be issued only if the
applicant makes ‘a substantial showing of the denial of a constitutional right.’” Doc. 9 at
6 (quoting 28 U.S.C. § 2253(c)(2)). To warrant a COA, a petitioner must make a
preliminary showing that “reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000)); see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[A] petitioner must
sho[w] 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.” (internal quotation marks
and citations omitted)). Because Douglas’s petition is denied as procedurally defaulted,
the Court finds it necessary to note that, when a claim is denied on procedural grounds,
a petitioner must also “demonstrate that a procedural ruling barring relief is itself
debatable among jurists of reason; otherwise, the appeal would not ‘deserve
encouragement to proceed further.’” Buck v. Davis, 137 S. Ct. 759, 777 (2017) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (“[A] COA should issue when the
[petitioner] shows, 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.”). Douglas has not made such a showing and thus the Court agrees that a COA
should be denied.
Accordingly, the Recommendation is ADOPTED as amended and made the
order of this Court. Douglas’s § 2254 petition is DENIED, and a certificate of
appealability is DENIED. Additionally, because there are no non-frivolous issues to
raise on appeal, an appeal would not be taken in good faith. See 28 U.S.C. §
1915(a)(3). Accordingly, any motion to proceed in forma pauperis on appeal is
SO ORDERED, this 18th day of October, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?