Opinion
Case No. 8:06-cv-518-T-26TBM.
August 16, 2006
AMENDED ORDER
This order amends the endorsed order (Dkt. 23) denying the motion for a certificate of appealability (Doc. 21).
Owens' filed a request for the issuance of a certificate of appealability (Dkt. 21), which the court construes as a notice of appeal. On April 24, 1996, the President signed into law amendments to 28 U.S.C. §§ 2244, 2253, 2254, 2255; Rule 22, Federal Rules of Appellate Procedure; and 21 U.S.C. § 848(q). As a result of these amendments, a disappointed movant under Section 2254 must acquire a certificate of appealability, which requires a substantial showing by an applicant of the denial of a constitutional right. As stated in Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 1603-04 (2000):
To obtain a COA under § 2254(c), a petitioner 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.'" Barefoot, supra, at 893, and n. 4, 102 S.Ct. 3383 ("sum[ming] up" the "substantial showing" standard).
. . . When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, 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. This construction gives meaning to Congress' requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the "substantial showing" standard provided in Barefoot, supra, at 893, and n. 4, 102 S.Ct. 3383. . . .
An applicant need not show probable success on appeal, but the issuance of a certificate of appealability entails more than "mere good faith" or only the "absence of frivolity." As stated in Miller-El v. Cockrell, 537 U.S. 322, 338 (2003):
We do not require petitioner to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus. Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail. As we stated in Slack [v. McDaniel, 529 U.S. 473 (2000)], "[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." 529 U.S., at 484, 120 S.Ct. 1595.
In this action, Owens' claims were denied on procedural grounds, specifically that the petition is time-barred. Owens argues in his request for a certificate of appealability that the petition should be considered timely based on his claim of actual innocence as a gateway for raising the untimely underlying grounds for relief. The actual innocence argument asserted in the petition is invalid because it relies on the retroactive application of Dominguez v. State of Florida, 876 So.2d 675 (Fla. 3rd DCA 2004). Owens' conviction became final two years earlier in 2002. Moreover, his actual innocence claim is based solely on the application of state law, and Owens never presented his Dominguez claim to the state courts in any of his motions for post-conviction relief or briefs on appeal.
Owens has failed to 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. The requirement of a certificate of appealability was meant to prevent this type of petition from proceeding any further.
Accordingly, the request for the issuance of a certificate of appealability (Dkt. 21) is DENIED.
DONE AND ORDERED in Tampa, Florida, on August 16, 2006.