Burton v. Hood et al

Filing 30

ORDER adopting 27 Report and Recommendation; denying 29 Motion for Certificate of Appealability. Signed by District Judge Carlton W. Reeves on 8/17/2012. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
DONALD BURTON

PETITIONER

v.

CAUSE NO. 3:09-CV-69-CWR-FKB

JIM HOOD; LAWRENCE KELLY

RESPONDENTS
ORDER

Before the Court is habeas petitioner Donald Burton’s objection to the United States
Magistrate Judge’s Report and Recommendation. Docket No. 28. The Report and Recommendation
recommends dismissing the habeas petition. Docket No. 27. Also pending is Burton’s motion for
a certificate of appealability. Docket No. 29.
After reviewing Burton’s objection, the Report and Recommendation, and other relevant
pleadings, the objection will be overruled and the Report and Recommendation will be adopted as
this Court’s own. The Court will add that Burton’s claim to relief under the Innocence Protection
Act is unavailing. See Docket No. 19, at 7. That law applies to persons convicted of federal
offenses, not state inmates like Burton. 18 U.S.C. § 3600(a); see Dist. Attorney’s Office for Third
Judicial Dist. v. Osborne, 557 U.S. 52, 63 (2009) (“the Innocence Protection Act of 2004 . . . allows
federal prisoners to move for court-ordered DNA testing under certain specified conditions.”).
Burton’s motion for a certificate of appealability will be denied. He has not “made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Williams
v. Thaler, 602 F.3d 291, 300-01 (5th Cir. 2010).
A separate Final Judgment will issue this day.
SO ORDERED, this the 17th day of August, 2012.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE