From Casetext: Smarter Legal Research

Ford v. Thomas

United States Court of Appeals, Eleventh Circuit
Jan 13, 2011
408 F. App'x 277 (11th Cir. 2011)

Opinion

No. 10-12677 Non-Argument Calendar.

January 13, 2011.

Raymond J. Hawthorne, Law Office of Raymond J. Hawthorne, Montgomery, AL, for Petitioner-Appellant.

Yvonne A.H. Saxon, Troy King, Alabama Attorney General, Montgomery, AL, for Respondents-Appellees.

Appeal from the United States District Court for the Northern District of Alabama. D.C. Docket No. l:09-cv-02618-RBP-HGD.

Before TJOFLAT, BLACK and CARNES, Circuit Judges.


Russell Ford, a Florida state prisoner proceeding through counsel, appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition as time-barred. Ford filed a notice of appeal, and the district court granted him a certificate of appealability (COA) as to whether he had "made a substantial showing of the denial of a constitutional right with respect to his claims related to newly discovered evidence and alleged destruction of evidence." Ford contends Alabama's post-conviction relief procedures are "fundamentally inadequate to vindicate [his] substantive rights" because the district attorney destroyed evidence, in bad faith and in violation of the Due Process Clause, which could have substantiated his claim of actual innocence.

A federal habeas petitioner must obtain a COA from the district court to appeal the denial of his § 2254 habeas petition. 28 U.S.C. § 2253(c)(1)(A). However, "[w]hen a district court dismisses a petition as time-barred, it is inappropriate to grant a COA on the [underlying] constitutional claim " Ross v. Moore, 246 F.3d 1299, 1300 (11th Cir. 2001).

In Ross we vacated the order granting a COA and remanded to the district court "for the limited purpose of considering whether a COA should be granted on the question of whether appellant's habeas petition is time-barred." Id.

In light of the district court's untimeliness ruling, it was inappropriate to grant a COA on the issue of whether Ford had "made a substantial showing of the denial of a constitutional right with respect to his claims related to newly discovered evidence and alleged destruction of evidence." Accordingly, we vacate the order granting a COA and remand to the district court for the limited purpose of considering whether a COA should be granted on the question of whether Ford's § 2254 petition is time-barred.

VACATED AND REMANDED.


Summaries of

Ford v. Thomas

United States Court of Appeals, Eleventh Circuit
Jan 13, 2011
408 F. App'x 277 (11th Cir. 2011)
Case details for

Ford v. Thomas

Case Details

Full title:Russell FORD, Petitioner-Appellant v. Willie THOMAS, Attorney General of…

Court:United States Court of Appeals, Eleventh Circuit

Date published: Jan 13, 2011

Citations

408 F. App'x 277 (11th Cir. 2011)