Opinion
Case No. 8:03-CV-443-T-30TBM, 8:01-CR-323-T-30TBM.
April 5, 2006
ORDER
This matter comes before the Court for consideration of Petitioner's Motion Requesting Certificate of Appealability ["COA] Review Pursuant to Rule 22(a), Fed.R.App.P., and 28 U.S.C. § 2253. (Dkt. 126). Petitioner has also filed a Motion for Leave to Proceed In Forma Pauperis on appeal (Dkt. 129) and an Affidavit of Indigency in support thereof (Dkt. 130). The Court construes the COA request as a notice of appeal of the February 10, 2006 order denying Petitioner's Place Holder Motion Challenging Subject Matter Jurisdiction Pursuant to Title 28 U.S.C. § 1331 (CV Dkt. 6). In light of Petitioner's statement therein that he was "not attacking the conviction/sentence but the procedure in which the sentence was imposed" based on the holdings in " Blakely and it[s] progeny" (Dkt. 6 at 2), the Court denied Petitioner's motion as a second or successive motion for collateral relief under 28 U.S.C. §§ 2255 pursuant to 28 U.S.C. § 2244(b). See Sawyer v. Holder, 326 F.3d 1363, 1365 n. 3 (11th Cir. 2003).
"Certificate of Appealability. (1) In a . . . 28 U.S.C. §§ 2255 proceeding, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. §§ 2253(c). If an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue. . . . If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals." Rule 22, Fed.R.App.P.
"[I]n . . . a proceeding under section 2255 . ., the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. . . . (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from — . . . (B) the final order in a proceeding under section 2255. . . . (2) A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c).
Issuance of a COA does not require a showing that the appeal will succeed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003). Under the controlling standard, a petitioner must, however, demonstrate that reasonable jurists could find it debatable whether (1) the petition states a valid claim of the denial of a constitutional right and (2) the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001); Franklin v. Hightower, 215 F.3d 1196, 1199 (11th Cir. 2000) (per curiam). Petitioner has failed to make this threshold showing. See Slack, 529 U.S. at 485; Franklin, 215 F.3d at 1199.
ACCORDINGLY, the Court ORDERS that:
1. Petitioner's Motion Requesting Certificate of Appealability ["COA] Review Pursuant to Rule 22(a) (Dkt. 126) is DENIED.
2. The Motion for Leave to Proceed In Forma Pauperis (Dkt. 129) is DENIED.DONE and ORDERED.