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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. 4:01cr14-RH/WCS

ALFRED FOOTMAN,

Defendant.

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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. Petitioner then filed a number of motions in an attempt to have this court

reconsider its ruling. Each time, the motion was denied. Petitioner now has filed a

notice of appeal and an application for a certificate of appealability. 

Unless a certificate of appealability is issued, petitioner may not appeal. See

28 U.S.C. §2253(c)(1). A certificate of appealability may be issued only if

petitioner “has made a substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2253(c)(2). See Miller-El v. Cockrell, 123 S. Ct. 1029, 1039-40

(2003) (explaining meaning of this term); Slack v. McDaniel, 529 U.S. 473, 483-

84, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) (same); Barefoot v. Estelle, 463 U.S.

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Case No: 4:01cr14-RH/WCS

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. 

In the case at bar, for the reasons set forth in the final order (documents 76

and 82), petitioner has failed to make the required showing. A certificate of

appealability therefore will not be issued.

Because petitioner has not obtained a certificate of appealability, I find that

continued pursuit of the appeal will not be undertaken in good faith. I hereby

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Case No: 4:01cr14-RH/WCS

certify pursuant to Federal Rule of Appellate Procedure 24(a) that petitioner’s

appeal is not taken in good faith.

For these reasons,

IT IS ORDERED:

Petitioner’s application for a certificate of appealability (documents 86 and

87) is DENIED.

SO ORDERED this 8th day of December, 2005.

s/Robert L. Hinkle 

Chief United States District Judge 

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