Opinion
Case No. 3:05-cv-620-J-32MCR.
March 10, 2006.
ORDER
Under the E-Government Act of 2002, this is a written opinion and therefore is available electronically. However, it has been entered only to decide the motion or matter addressed herein and is not intended for official publication or to serve as precedent.
1. Petitioner's February 12, 2006, Motion for Enlargement of Time (Doc. #12) is DENIED because it was not timely filed. In order to be considered timely, Petitioner was required to hand his Motion for Enlargement of Time to prison authorities for mailing to this Court on or before February 11, 2006. See Fed.R.App.P. 4(a)(5)(A)(i). Thus, Petitioner's Notice of Appeal (Doc. #13) was not timely filed.
Judgment in this case was entered on December 13, 2005. Thus, Petitioner was required to file his notice of appeal no later than January 12, 2006. See Fed.R.App.P. 4(a)(1)(A). Accordingly, the final date Petitioner could have timely handed a request for an extension of time to appeal to prison authorities for mailing to this Court was thirty days later, on February 11, 2006. Petitioner handed his Motion for Enlargement of Time (Doc. #12) to prison authorities for mailing to this Court on February 12, 2006.
2. Even assuming arguendo that Petitioner's Notice of Appeal (Doc. #13) was timely filed, Petitioner's "Request for Issuance of Certificate of Appealability (COA) Pursuant to Fed.R.App.P. 22(b) and 28 U.S.C. § 2253(c)(2)" (Doc. #14) is due to be denied. On April 24, 1996, the President signed into law amendments to 28 U.S.C. §§ 2244, 2253, 2254, 2255, Appellate Rule 22, and 21 U.S.C. § 848(q). As a result, this Court should grant an application for a certificate of appealability only if the Petitioner makes a substantial showing of the denial of a constitutional right. To make this substantial showing, Petitioner "must demonstrate that the issues are debatable among jurists of reason" or "that a court could resolve the issues [differently]." Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983) (citation omitted). In addition, Petitioner could show "the questions are adequate to deserve encouragement to proceed further." Id.
Specifically, where a district court has rejected a prisoner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000);Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S. 966 (2000). When the district court has rejected a claim on procedural grounds, the petitioner must show 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. Slack, 529 U.S. at 484; Franklin v. Hightower, 215 F.3d 1196, 1199 (11th Cir. 2000) (per curiam),cert. denied, 532 U.S. 1009 (2001). Here, Petitioner has failed to make the requisite showing. Therefore, Petitioner's "Request for Issuance of Certificate of Appealability (COA) Pursuant to Fed.R.App.P. 22(b) and 28 U.S.C. § 2253(c)(2)" (Doc. #14) is DENIED.
3. Because this Court has determined that this case does not deserve to proceed further, the Clerk shall terminate from the pending motions report any motion to proceed on appeal as a pauper that may be filed in this case. Such termination shall serve as a denial of the motion.
DONE AND ORDERED.