Opinion
Case Nos. 2:02-CV-628-FtM-29DNF, 2:93-CR-102-FTM-29.
March 30, 2006
OPINION AND ORDER
This matter comes before the Court on Petitioner's Notice of Appeal (Doc. #11), filed on March 8, 2006. Pursuant to Fed.R.App.P. 22(b)(1), this is deemed to also include an application for certificate of appealability.
Under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order in a habeas proceeding unless a certificate of appealability issues. The decision to issue a certificate of appealability requires "an overview of the claims in the habeas petition and a general assessment of their merits." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). 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); Peoples v. Haley, 227 F.3d 1342 (11th Cir. 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, 121 S. Ct. 1738 (2001). "This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims." Miller-El v. Cockrell, 537 U.S. at 336.
On January 31, 2006, the Court entered an Opinion and Order (Doc. #9) on remand from the Eleventh Circuit Court of Appeals to address an oversight and more specifically "to resolve the ineffective-assistance-of-counsel claims based on failure to request a special verdict as to drug type." (Doc. #9, pp. 1-2). An Amended Judgment (Doc. #10) was entered on February 1, 2006, and petitioner filed a Notice of Appeal (Doc. #11) dated March 3, 2006, on March 8, 2006. The petition was denied on the merits, and the Court finds that petitioner has failed to show that jurists of reason would find the Court's assessment of the constitutional claim was debatable or wrong.
Accordingly, it is now
ORDERED:
Petitioner's application for certificate of appealability, deemed included in the Notice of Appeal (Doc. #11), is DENIED.
DONE AND ORDERED.