Opinion
Case No. 8:08-CV-492-T-30TGW.
January 12, 2010
ORDER
This matter comes before the Court for consideration of Petitioner's Motion for Extension of Time (Dkt. 33) in which he requests an extension of time to file both a motion to proceed on appeal in forma pauperis, and an application for a certificate of appealability. Also before the Court is Petitioner's Notice of Appeal (Dkt. 31) of the December 10, 2009 decision denying his petition for relief under 28 U.S.C. § 2254 (See Dkt. 29). The Court construes the Notice of Appeal as an application for issuance of a certificate of appealability pursuant to Rule 22, Fed.R.App.P., and 28 U.S.C. § 2253 (Dkt. 32).
"Certificate of Appealability. (1) In a habeas corpus proceeding in which the detention complained of arises from process issued by a state court, or in a 28 U.S.C. §§ 2255 proceeding, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. §§ 2253(c). If an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or statewhy a certificate should not issue. . . . If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals." Rule 22, Fed.R.App.P.
"Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from — (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; . . . (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).
Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ of habeas corpus 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, 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-Elv. Cockrell, 537U.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 COA, he is not entitled to appeal in forma pauperis.
ACCORDINGLY, the Court ORDERS that:
1. Petitioner's construed motion for issuance of a certificate of appealability (Dkt. 32) is DENIED.
2. Petitioner's Motion for Extension of Time (Dkt. 33) is DENIED.DONE and ORDERED in Tampa, Florida.