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Case No. 5:11cv45-RH/GRJ

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

TIMOTHY WAYNE CHILTON,

Petitioner,

v. CASE NO. 5:11cv45-RH/GRJ

SECRETARY, FLORIDA DEPT.

OF CORRECTIONS,

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. 28. The 

report and recommendation was entered nearly two months ago. The report and 

recommendation concludes that the petition should be denied.

The deadline for objections was extended, but no objections have been filed. 

If it turns out that objections were mailed but have not yet been received, the issues 

they raise will be considered de novo.

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Case No. 5:11cv45-RH/GRJ

The report and recommendation is correct and is adopted as the court’s 

opinion.

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.’ ” 

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 

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Case No. 5:11cv45-RH/GRJ

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 close the file.

SO ORDERED on March 25, 2014.

s/Robert L. Hinkle

United States District Judge

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