U.S. v. Thercy

Full title: UNITED STATES OF AMERICA v. JEFFREY THERCY

Court: United States District Court, N.D. Florida, Pensacola Division

Date published: Oct 20, 2009

3:98cr126/LAC (N.D. Fla. Oct. 20, 2009)

Opinion

3:98cr126/LAC.

October 20, 2009

ORDER

LACEY COLLIER, District Judge

The defendant has filed a Brief for Certificate of Appeability and a motion for leave to appeal in forma pauperis (doc. 317 318), to appeal the court's denial of his motion pursuant to 18 U.S.C. § 3582(c)(2). (Doc. 312). Unless a certificate of appealability is issued, the defendant may not take an appeal from the final order denying Section 2255 relief, or relief pursuant to Rule 60(b). See 28 U.S.C. 2253(c)(1)(B); Gonzalez v. Secretary of Department of Corrections, 317 F.3d 1308, 1312 (11^th Cir. 2003). It does not appear that a certificate of appealability is required under the circumstances in this case where a defendant seeks to appeal the denial of a motion pursuant to § 3582 that was not construed as a § 2255 motion. See United States v. Hernandez, 2004 WL 1147258, *1 (4^th Cir. 2004) (finding no certificate of appealability required, citing 28 U.S.C. § 2253(c)(1)(B)); Lowe v. United States, 2007 WL 41951, *1 (M.D.Ga. 2007) (same); United States v. Robinson, 2006 WL 2350016, *2 (E.D.Tex., 2006) (same); U.S. v. Camarillo-Hernandez, 2003 WL 1529582, *1 (5^th Cir. 2003) (reviewing merits of § 3582 appeal without certificate of appealability); United States v. Lindsey, 3 Fed.Appx. 116-117, **1 (4^th Cir. 2001) (same); compare United States v. Walters, 213 Fed.Appx. 190, *191, 2007 WL 136694, **1 (4^th Cir. 2007); United States v. Crawford, 2007 WL 1745876, *1 (11^th Cir. 2007); United States v. Perez, 197 Fed.Appx. 895, *896, 2006 WL 2805648, **1 (11^th Cir. 2006); United States v. Jackson, 187 Fed.Appx. 381, 2006 WL 1824839, **1 (5^th Cir. 2006); United States v. Miller, 116 Fed. Appx 457 (4^th Cir. 2004). To the extent one would be required, the court finds that defendant has not made a substantial showing of a denial of a constitutional right for the reasons stated in the court's order denying his original motion. (Doc. 312). Thus, his request for a certificate of appealability will be denied.

With respect to defendant's motion for leave to proceed in forma pauperis, the court finds that the appeal is not taken in good faith and he is not otherwise entitled to so proceed. Fed.R.App.P. 24(a)(3). Defendant's motion is therefore denied and he shall pay the $455.00 filing fee within thirty days.

DONE AND ORDERED.