Opinion
CASES NO. 4:07cr20-RH CASES NO. 4:09cv338-RH
04-05-2012
UNITED STATES OF AMERICA, v. CARLOS TIRAN McCRAY, Defendant.
ORDER DENYING THE § 2255 MOTION AND
DENYING A CERTIFICATE OF APPEALABILITY
The defendant Carlos Tiran McCray has moved under 28 U.S.C. § 2255 for relief from his judgment of conviction as an armed career criminal under 18 U.S.C. § 924(e) . The motion is before the court on the magistrate judge's report and recommendation, ECF No. 59, and the objections, ECF No. 60. I have reviewed de novo the issues raised by the objections. This order accepts the report and recommendation and denies the § 2255 motion.
In the objections Mr. McCray asserts that he is somehow entitled to relief under Johnson v. United States, 130 S. Ct. 1265 (2010). There the Court held that simple battery under Florida law is not a "violent felony" within the meaning of § 924(e). But that hardly helps Mr. McCray; his predicate offenses included multiple convictions for robbery with a firearm. Johnson looked to state law for the elements of a state offense, but that does not help Mr. McCray; the elements of robbery with a firearm under Florida state law are easily sufficient to render this a "violent felony" under § 924(e). The question whether a state's disposition of the case qualifies as a "conviction" under § 924(e) is a question of federal law. And here, as already determined on Mr. McCray's direct appeal, the state's dispositions of the robbery-with-a-firearm charges against Mr. McCray were "convictions," regardless of what they might have been called under state law.
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 theSlack, 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.
issues presented were "adequate to deserve encouragement to proceed further."
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, ECF No. 59, is accepted and adopted as the court's opinion.
2. The clerk must enter a judgment stating, "The defendant's motion for relief under 28 U.S.C. § 2255 is denied with prejudice."
3. The defendant's application for a certificate of appealability is DENIED.
4. Leave to proceed on appeal in forma pauperis is DENIED.
Robert L. Hinkle
United States District Judge