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Copeland v. Secretary, Department of Corrections

United States District Court, N.D. Florida, Tallahassee Division

November 14, 2019

SHANNON COPELAND, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          REPORT AND RECOMMENDATION

          Michael J. Frank United States Magistrate Judge

         This habeas case, filed under 28 U.S.C. § 2254, is before the court upon Petitioner Shannon Copeland's “Request for Modification of Custody” (Doc. 26), in which she seeks release on bond pending resolution of her habeas petition. The undersigned concludes that Copeland is not entitled to the extraordinary relief she seeks.[1]

         I. Background

         Copeland's habeas petition challenges her conviction and subsequent revocation of probation in Liberty County Circuit Court Case No. 2007-CF-60. (Doc. 1). Copeland's underlying conviction is for Resisting a Law Enforcement Officer with Violence. (Id.). Copeland's petition raises four grounds for relief: (1) “Sentenced as incompetent without being adjudicated competent;” (2) “Sentenced based on unsubstantiated allegation;” (3) “Charges based on false report of police officer who lied to cover up abuse;” and (4) “Plea not voluntary.” (Doc. 1 at 5-11). The State filed an answer to the petition on November 27, 2018, (Doc. 19), and Copeland replied on May 24, 2019, (Doc. 23).

         II. Discussion

         In Gomez v. United States, 899 F.2d 1124 (11th Cir. 1990), the Eleventh Circuit set forth the applicable standard for granting release pending the outcome of a habeas petition:

A prisoner seeking release pending habeas corpus can be granted bail under two sets of circumstances: first, he must demonstrate a likelihood of success on the merits of a substantial constitutional claim; second, extraordinary and exceptional circumstances must exist which make the grant of bail necessary to preserve the effectiveness of the habeas corpus relief sought.

Gomez, 899 F.2d at 1125; see also Aronson v. May, 85 S.Ct. 3, 4-5 (1964). Copeland alleges that she is entitled to release on bond because: (1) she is due to be released in two years, (2) she has been denied appointed habeas counsel, (3) she has inadequate access to the prison law library, (4) she has received several “false/retaliatory” disciplinary convictions, (5) her sentence was excessive, and (6) she is innocent of the crime. (Doc. 26). These allegations do not show the existence of any circumstance making Copeland's habeas application exceptional and deserving of special treatment in the interests of justice. Copeland is not entitled to the extraordinary relief of release on bail.

         III. Certificate of Appealability

         Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides: “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A district court's order denying bond is a final appealable order under the collateral order doctrine; therefore, a petitioner must have a certificate of appealability (“COA”) to proceed on appeal. See Pagan v. United States, 353 F.3d 1343, 1346 (11th Cir. 2003). If a certificate is issued, “the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. See 28 U.S.C. § 2254 Rule 11(b).

         “[Section] 2253(c) permits the issuance of a COA only where a petitioner has made a ‘substantial showing of the denial of a constitutional right.'” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting 28 U.S.C. § 2253(c)). “At the COA stage, the only question is whether the applicant has shown that ‘jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.'” Buck v. Davis, 580 U.S. ___, 137 S.Ct. 759, 774 (2017) (quoting Miller-El, 537 U.S. at 327). Here, Petitioner has not made the requisite demonstration. Accordingly, the court should deny a certificate of appealability in its final order.

         The second sentence of Rule 11(a) provides: “Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue.” 28 U.S.C. § 2254 Rule 11(a). If there is an objection to this recommendation by either party, that party may bring such argument to the attention of the district judge in the objections permitted to this report and recommendation.

         IV. ...


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