U.S. v. Williams

Full title: UNITED STATES OF AMERICA v. BENNIE CLEVELAND WILLIAMS

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

Date published: Oct 3, 2007

3:94cr3136/RV (N.D. Fla. Oct. 3, 2007)

Opinion

3:94cr3136/RV.

October 3, 2007

ORDER

ROGER VINSON, District Judge

The defendant has filed a notice of appeal (doc. 334) which this court construes as a request for a certificate of appealability.¹ Defendant appeals the court's denial of his motion pursuant to 18 U.S.C. § 3582(c)(2). (Doc. 333). 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 (4th 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 (5th Cir. 2003) (reviewing merits of § 3582 appeal without certificate of appealability); United States v. Lindsey, 3 Fed.Appx. 116-117, **1 (4th Cir. 2001) (same); compare United States v. Walters, 213 Fed.Appx. 190, *191, 2007 WL 136694, **1 (4th Cir. 2007); United States v. Crawford, 2007 WL 1745876, *1 (11th Cir. 2007); United States v. Perez, 197 Fed.Appx. 895, *896, 2006 WL 2805648, **1 (11th Cir. 2006); United States v. Jackson, 187 Fed.Appx. 381, 2006 WL 1824839, **1 (5th Cir. 2006); United States v. Miller, 116 Fed. Appx 457 (4th 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. 333). Thus, his request for a certificate of appealability will be denied.

1 See Edwards v. United States, 114 F.3d 1083 (11^th Cir. 1997) (district courts must treat notices of appeal in Section 2255 actions as applications for certificates of appealability).

Defendant has not filed a 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 shall therefore pay the $455.00 filing fee within thirty days.

DONE AND ORDERED.