Opinion
Case No. 8:10-CV-1907-T-30MAP, Crim Case No. 8:08-CR-435-T-30MAP.
December 20, 2010
ORDER
This matter comes before the Court for consideration of Petitioner's letter to the Clerk of Court (CV Dkt. 4) which the Court construes as both an application for a certificate of appealability, and a Notice of Appeal (CV Dkt. 5) of the August 30, 2010 decision dismissing Petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2255 as a second or successive motion (see CV Dkt. 3). Petitioner did not pay the appellate filing fee and costs or seek leave to proceed on appeal in forma pauperis.
"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).
A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability ("COA"). Id. "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in these circumstances. Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
ACCORDINGLY, the Court ORDERS that Petitioner's construed application for issuance of a certificate of appealability (CV Dkt. 4) is DENIED. DONE and ORDERED in Tampa, Florida on December 20, 2010.