Opinion
Case No. 8:11-CV-388-T-30TGW, 8:07-CR-120-T-30TGW.
September 20, 2011
ORDER
This cause comes on for consideration of Petitioner's Motion for Reconsideration of the Denial of Petitioner's Title 28 U.S.C. § 2255 Motion (Cv-D-8).
By order dated August 12, 2011, the Court dismissed for lack of jurisdiction Petitioner's § 2255 motion. In doing so, the Court found that the motion was time-barred. Alternatively, the Court found that Petitioner was properly sentenced as an armed career criminal, and as such, would not be entitled to relief.
Petitioner now returns to the Court seeking reconsideration of this Court's August 12, 2011 order. Petitioner contends, as he similarly argued in his § 2255 motion, that his § 2255 motion is timely under Johnson v. United States, ___ U.S. ___, 130 S. Ct. 1265 (2010). He further disputes the Court's finding that he was convicted of aggravated assault with a deadly weapon without the intent to kill in violation of Fla. Stat. § 784.021. Finally, he requests the Court reconsider the denial of a certificate of appealability.
The Court has considered Petitioner's arguments and reconsidered its August 12, 2011 order and finds that amendment of the order is not necessary. The Court therefore declines to amend the order in any respect.
It is therefore ORDERED that:
1) Petitioner's Motion for Reconsideration of the Denial of Petitioner's Title 28 U.S.C. § 2255 Motion (Cv-D-8) is GRANTED only to the extent that the Court has reconsidered its August 12, 2011 Order. The Court, however, declines to amend the order in any respect. The Court's previous ruling of August 12, 2011 is CONFIRMED.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHERED ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his petition. 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, a 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) (quotingBarefoot 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.
DONE AND ORDERED at Tampa, Florida this 19th day of September, 2011.