Opinion
Case No. 2:06-cv-381-FtM-29SPC, Case No. 2:04-cr-091-FtM-29SPC.
July 20, 2007
OPINION AND ORDER
This matter comes before the Court on petitioner's [motion for] Leave to File a Motion to Obtain Certificate of Appealability Pursuant to 28 U.S.C. 2253 (Doc. #13), filed on July 16, 2007. For the reasons set forth below, the motion and a certificate of appealability are denied.
Under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order in a habeas proceeding unless a certificate of appealability issues. The decision to issue a certificate of appealability requires "an overview of the claims in the habeas petition and a general assessment of their merits." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Specifically, where a district court has rejected a prisoner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Peoples v. Haley, 227 F.3d 1342 (11th Cir. 2000). When the district court has rejected a claim on procedural grounds, the petitioner must show 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; Franklin v. Hightower, 215 F.3d 1196, 1199 (11th Cir. 2000) (per curiam),cert. denied, 121 S. Ct. 1738 (2001). "This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims." Miller-El v. Cockrell, 537 U.S. at 336.
On July 3, 2007, the Court entered an Opinion and Order (Doc. #11) denying petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 and finding no ineffective assistance of trial counsel at the sentencing hearing. Judgment (Doc. #12) was subsequently entered and petitioner filed a Notice of Appeal (Doc. #14) on July 16, 2007.
Petitioner asserts that he was not served with the government's Response (Doc. #10) to the § 2255 motion, and that he was thereby prejudiced by a lack of opportunity to reply to the government's Response. The government's Response (Doc. #10) contains a certificate of service showing it was mailed to petitioner at the same institution where he is currently incarcerated. Assuming nonetheless that petitioner never received a copy of the Response, the Court finds he has not been denied any rights. Rule 5(d) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that "[t]he moving party may submit a reply to the respondents answer or other pleading within a time fixed by the judge." The Local Rules, United States District Court for the Middle District of Florida provides that "[n]o party shall file any reply or further memorandum directed to the motion or response allowed in (a) and (b) unless the Court grants leave." Local Rule 3.01(c). Here, the Court neither solicited a reply nor granted leave for petitioner to file a reply.
The Court finds that none of the ineffective assistance of counsel issues raised in the § 2255 petition were meritorious, and that petitioner has failed to show that jurists of reason would find that the Court's assessment of any of the constitutional claims was debatable or wrong. The Court will, however, require a copy of the government's Response (Doc. #10) be sent to petitioner.
Accordingly, it is now
ORDERED:
1. Petitioner's motion for Leave to File a Motion to Obtain Certificate of Appealability Pursuant to 28 U.S.C. 2253 (Doc. #13) is DENIED, and petitioner is denied a certificate of appealability.
2. The government shall mail its Response (Doc. #10) to petitioner within ten (10) days of the date of this Opinion and Order and file a Certificate of Service reflecting such mailing.
DONE AND ORDERED at Fort Myers, Florida.