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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 4:99cr16-RH/WCS

4:05cv341-RH/WCS

MARK ANTHONY JONES,

Defendant.

__________________________________/

ORDER DENYING CERTIFICATE OF APPEALABILITY

After defendant’s conviction and sentence in this court were affirmed on

appeal, he filed a motion for relief under 28 U.S.C. §2255. This court denied the

motion. Defendant then filed additional motions seeking relief from the conviction

and sentence. The motions were denied for failure to obtain authorization from the

court of appeals to file second or successive motions. 

Defendant has filed a notice of appeal from the judgment denying the second

and successive motions. Under 28 U.S.C. §2253(c)(1), however, defendant is not

entitled to appeal unless a certificate of appealability is issued. Under Edwards v.

United States, 114 F.3d 1083 (11th Cir. 1997), defendant’s notice of appeal is

deemed an application for a certificate of appealability. 

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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, 123 S. Ct. 1029, 1039-40 (2003); Slack v.

McDaniel, 529 U.S. 473, 483-84, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000);

Barefoot v. Estelle, 463 U.S. 880, 893, n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090

(1983);; see also Williams v. Taylor, 529 U.S. 362, 402-13, 120 S. Ct. 1495, 146 L.

Ed. 2d 389 (2000) (setting forth standards applicable to §2254 petitions 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.'"

 

Slack, 529 U.S. at 483-84, quoting Barefoot, 463 U.S. at 893 n.4. Further, in order

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." Slack, 529 U.S. at 484. 

For the reasons set forth in the magistrate judge’s report and

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recommendation (document 109), as adopted by this court (document 111),

defendant has made no such showing, and no certificate of appealability will be

issued. In addition, for the same reasons, I find that defendant’s appeal is not taken

in good faith. I hereby certify pursuant to Federal Rule of Appellate Procedure

24(a) that defendant’s appeal is not taken in good faith and that defendant is not

otherwise entitled to proceed in forma pauperis on appeal. I thus conclude that

leave to proceed in forma pauperis should be denied. Accordingly,

IT IS ORDERED:

1. Defendant’s notice of appeal (document 113), deemed an application for

a certificate of appealability, is DENIED.

2. Leave to proceed on appeal in forma pauperis is DENIED.

SO ORDERED this 15th day of December, 2005.

s/Robert L. Hinkle 

Chief United States District Judge 

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