Opinion
CASE NO. 8:11-CV-42-T-30EAJ, CRIM. CASE NO. 8:04-CR-475-T-30EAJ.
June 13, 2011
ORDER
Before the Court are Petitioner's construed motion for a certificate of appealability ("COA") filed pursuant to 28 U.S.C. § 2253 (CV Dkt. 5), see Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir. 1997), and motion for leave to proceed on appeal in forma pauperis (CV Dkt. 6).
"[I]n . . . a proceeding under section 2255 . . ., the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. . . . (c)(1) 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).
The Court found that Petitioner's § 2255 motion was time-barred (CV Dkt. 3). To merit a COA, Petitioner must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because the § 2255 motion is time-barred, and Petitioner has failed to make a sufficient showing of the "extraordinary circumstances" required to warrant equitable tolling of the limitations period, Petitioner has failed to satisfy the second prong of the Slack test. 529 U.S. at 484. Therefore, Petitioner has failed to make a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c).
ACCORDINGLY, the Court ORDERS that:
1. Petitioner's construed motion for a certificate of appealability (CV Dkt. 5) is DENIED.
2. Petitioner's motion for leave to proceed on appeal in forma pauperis (CV Dkt. 6) is DENIED.DONE and ORDERED in Tampa, Florida.