COPELAND v. SECRETARY DEPARTMENT OF CORRECTIONS ( 2019 )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION SHANNON COPELAND, Petitioner, v. CASE NO. 4:18cv173-RH-MJF SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. _________________________________/ ORDER DENYING RELEASE PENDING DISPOSITION OF THE HABEAS PETITION By petition for a writ of habeas corpus under 28 U.S.C. § 2254, Shannon Copeland challenges her state-court conviction and sentence. She has moved for release from custody while the petition is pending. The motion is before the court on the magistrate judge’s report and recommendation, ECF No. 27, and the objections, ECF No. 29. I have reviewed de novo the issues raised by the objections. The report and recommendation correctly concludes that Ms. Copeland is not entitled to release pending adjudication of her petition. This order makes no ruling on whether this order denying release is appealable or on whether, if the order is appealable at all, it is appealable only on issuance of a certificate of appealability. 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. Ms. Copeland has not made the required showing. This order thus denies a certificate of appealability. IT IS ORDERED: 1. The motion for release, ECF No. 26, is denied. 2. A certificate of appealability is denied. 3. The case is remanded to the magistrate judge for further proceedings. SO ORDERED on December 23, 2019. s/Robert L. Hinkle United States District Judge