Ross v. Moore

Full title: Bobby B. ROSS, Petitioner-Appellant, v. Michael MOORE, Respondent-Appellee

Court: United States Court of Appeals, Eleventh Circuit

Date published: Apr 3, 2001

246 F.3d 1299 (11th Cir. 2001)

Opinion

No. 00-13646.

April 3, 2001.

Appeal from the United States District Court for the Southern District of Florida.

Bobby B. Ross, Arcadia, FL, pro se.

Before TJOFLAT and BLACK, Circuit Judges

BY THE COURT:

Appellant has filed a motion for a certificate of appealability (COA), which this Court construes as a motion to expand the COA already granted by the district court. The district court granted a COA as to "[w]hether Petitioner was denied the right to due process under the Fifth and Fourteenth Amendments to the United States Constitution." The issue upon which the district court granted a COA, however, conflicts with the district court's dismissal of the appellant's habeas petition, 28 U.S.C. § 2254, as time-barred under the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996. When a district court dismisses a petition as time-barred, it is inappropriate to grant a COA on the constitutional claim e.g., the due process claim in this case. Accordingly, this Court VACATES the order granting a COA and REMANDS the case 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. Appellant's motion to expand the COA is DENIED AS MOOT.