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United States of America v. Darrell Lee Kilgore

December 3, 2011

UNITED STATES OF AMERICA
v.
DARRELL LEE KILGORE, DEFENDANT.



The opinion of the court was delivered by: Robert L. Hinkle United States District Judge

ORDER DENYING THE § 2255 MOTION AND DENYING A CERTIFICATE OF APPEALABILITY

The defendant has moved under 28 U.S.C. § 2255 for relief from his judgment of conviction. The motion is before the court on the magistrate judge's report and recommendation, ECF No. 87, and the objections, ECF No. 88. I have reviewed de novo the issues raised by the objections. The report and recommendation concludes that the § 2255 motion should be denied. That is correct. This order accepts the report and recommendation and adopts it as the court's opinion, with this additional note.

The report and recommendation correctly concludes that under the law of the circuit, the Florida felony offense of burglary of a structure is a crime of violence within the meaning of the Armed Career Criminal Act, 18 U.S.C. § 924(e). The Eleventh Circuit recently so held yet again. See United States v. Bush, No. 10-15590, 2011 WL 3557490 (11th Cir. Aug. 12, 2011).

A defendant may appeal the denial of a § 2255 motion only if the district court or court of appeals issues 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." 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, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (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 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.

The defendant has not made the required showing. This order thus denies a certificate of appealability. Because the defendant has not obtained-and is not entitled to-a certificate of appealability, any appeal by the defendant will not be taken in good faith. I certify under Federal Rule of Appellate Procedure 24(a) that any appeal will not be taken in good faith and that the defendant is not otherwise entitled to proceed in forma pauperis on appeal. Accordingly,

IT IS ORDERED:

1. The report and recommendation is accepted and adopted as the court's opinion.

2. A certificate of appealability is denied.

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

20111203

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