Opinion
Case Nos. 2:05-cv-266-FtM-29DNF, 2:01-cr-105-FTM-29DNF.
February 10, 2006
OPINION AND ORDER
This matter comes before the Court on Petitioner's Pro/Se Application for Certificate of Appealability (Doc. #11), which the Court will deem to include a Notice of Appeal (Doc. #12).See Fed.R.App.P. 22-1(c)(1).
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.
In this action, on December 19, 2005, the Court denied the petition finding that it was untimely; that petitioner waived his right to appeal by a valid sentence appeal waiver; and that no other basis for relief existed. (Opinion and Order, Doc. #9). The Court finds that petitioner has failed to show that jurists of reason would find the Court was incorrect in its procedural rulings. As a result, a certificate of appealability will be denied, and the request to proceed without prepayment will be denied as moot.
Accordingly, it is now
ORDERED:
1. Petitioner's application for certificate of appealability, deemed included in the Notice of Appeal (Doc. #11), is DENIED.
2. Petitioner's Application to Proceed Without Prepayment of Fees and Affidavit (Doc. #14), construed as a motion to proceedin forma pauperis, is DENIED as moot.
DONE AND ORDERED.