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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. 3:99cr18/RV

MICHAEL CRAIG PUGH

ORDER

The defendant has filed a petition for issuance of certificate of appealability of this

court’s denial of his motion for DNA testing and his motion for reconsideration. (Doc. 152,

17, 168, 169). Defendant moved for DNA testing under title 18 U.S.C. § 3600, which was

enacted in 2004. Section 3600(h) provides that nothing within this section shall affect the

circumstances under which a person may obtain DNA testing or post-conviction relief under

any other law, that nothing in this section shall provide a basis for relief in any Federal

habeas corpus proceeding, and that a motion made under that section is not to be

considered as a motion under § 2255 for the purposes of determining whether a motion is

second or successive under § 2255. 18 U.S.C. § 3600(h)(1)(2) and (3). It is not entirely

clear whether a certificate of appealability is required to appeal the denial of such a motion. 

See Young v. Wynder, 2008 WL 2227534 (E.D.Pa. 2008) (denying motion for post

conviction DNA testing because defendant was not entitled to proceed under § 3600, and

finding no probable cause to issue certificate of appealability). 

To the extent that such a certificate is required, the defendant asserts that the court

erred in its analysis of the fourth prong of the ten-part test for determining whether DNA

testing is warranted. This portion of the test requires that the evidence to be tested must

still be in the possession of the Government, subject to a chain of custody and retained

under conditions sufficient to ensure that it has not been substituted, contaminated,

tampered with, replaced or altered in any material respect. 18 U.S.C. § 3600(a)(4). The

government proffered that there was no physical evidence remaining upon which to
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conduct testing, as it had been destroyed in the ordinary course of business after resolution

of defendant’s direct appeals. Defendant contended that the government failed to follow

proper protocol, failing to recognize that the statutory requirements upon which he relied

were not enacted until October 30, 2004, nearly four years after he exhausted all avenues

of direct review of his conviction. The court concluded, quite reasonably, that the

government could not be faulted for its alleged failure to comply with procedures that were

not yet in place. Defendant’s request for a certificate of appealability is based on the fact

that the government did not present absolute proof of destruction of the biological evidence,

only a “proffer” based on it belief that FBI policy would have provided for destruction of the

evidence long ago. He claims that the failure of such “proof” deserves encouragement to

go further because jurists of reason could disagree about the court’s ruling. This court

disagrees. Finding that defendant has not made a substantial showing of the denial of a

constitutional right, see United States v. Futch, 518 F.3d 887 (11th Cir. 2008), his request

for a certificate of appealability is DENIED. 

 No motion for leave to proceed in forma pauperis has been filed. If one were to be

filed, it should also be denied. Fed.R.App.P. 24(a)(3). Defendant shall pay the $455.00

filing fee within thirty days.

DONE AND ORDERED this 28th day of September, 2009.

/s/ Roger Vinson 

ROGER VINSON

SENIOR UNITED STATES DISTRICT JUDGE

Case No: 3:99cr18/RV