Opinion
Case No. 8:05-cv-208-T-24MAP.
April 27, 2006
ORDER
This Court denied Petitioner's petition for writ of habeas corpus on March 23, 2006 and directed the Clerk to enter judgment. The Clerk entered judgment on March 24, 2006. Petitioner filed a Notice of Appeal dated April 24, 2006, 31 days later. He also certified that he placed the Notice of Appeal in the hands of the Correctional Institution for mailing on April 24, 2006. (See Doc. No. 29). Therefore, the Notice of Appeal is untimely.
However, pursuant to Edwards v. United States, 114 F.3d 1083 (11th Cir. 1997), the Clerk construed the Notice of Appeal as a request for a certificate of appealability.
To merit a certificate of appealability, Petitioner must show that reasonable jurists would find debatable both (1) the merits of an underlying claim, and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 475 (2000). Petitioner has failed to meet this standard. Therefore, Petitioner has failed to satisfy the Slack test.
Miller-El v. Cockrell, 123 S.Ct. 1029 (2003) does not change the Slack standard. See Ziegler v. Crosby, 345 F.3d 1300, 1303 n. 4 (11th Cir. 2003).
Accordingly, to the extent that this Court has jurisdiction to rule on a construed request for a certificate of appealability based on an untimely-filed Notice of Appeal, the Court orders:
That Petitioner's construed request for certificate of appealability (Doc. No. 30) is denied.
ORDERED.