Opinion
CASE NO. 4:18cv581-RH-MJF
06-12-2020
DAVID B. MILTON a/k/a DAVE B. MILTON, Petitioner, v. MARK S. INCH, 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. 19. No objections have been filed, but the petitioner has filed a premature notice of appeal, ECF No. 20. The report and recommendation is correct and is adopted as the court's opinion.
The report and recommendation concludes that the petitioner's grounds 7 and 9 should be denied based on procedural default. That is correct. In addition, those grounds are unfounded on the merits.
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 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."
3. A certificate of appealability is denied.
4. The clerk must process the notice of appeal, ECF No. 20, as it would be processed in the ordinary course if filed after entry of judgment.
5. The clerk must close the file.
SO ORDERED on June 12, 2020.
s/ Robert L. Hinkle
United States District Judge