Opinion
CASE NO. 8:08-cv-1900-T-30TGW, CRIM. CASE NO. 8:05-cr-374-T-30MSS.
November 5, 2009
ORDER
Before the Court is Petitioner's Application for Certificate of Appealability (CV Dkt. 26), and Memorandum in Support of Application for Certificate of Appealability (CV Dkt. 27). "Under 28 U.S.C. § 2253(c)(2), a `certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.'" United States v. Coley, 2009 U.S. App. LEXIS 15607 at *3 n. 1 (11th Cir. Fla. July 14, 2009) (unpublished opinion). Petitioner asserts that under Begay v. United States, 128 S.Ct. 1581 (2008) and United States v. Archer, 531 F.3d 1347 (11th Cir. 2008), his prior conviction for carrying a concealed firearm is not a crime of violence, and therefore he is actually innocent of the career offender enhancement. In light of Hunter v. United States, 559 F.3d 1188 (11th Cir. 2009), no certificate of appealability will be granted in this case.
In Hunter, the petitioner requested a certificate of appealability and argued that in light of Begay, "his due process rights were violated when he was sentenced as an armed career criminal based on two prior convictions for carrying a concealed weapon . . . [and] . . . his appellate counsel was ineffective for failing to object to the use of his prior firearms convictions in determining that he was subject to an armed career criminal enhancement." 559 at 1190. The Eleventh Circuit denied petitioner's request for a certificate of appealability because "[n]either argument involves a substantial showing of the denial of a constitutional right." Id. The Hunter court stated "[a]lthough Begay provides good reason to conclude that Hunter was erroneously sentenced as an armed career criminal, a sentencing error alone does not amount to `a substantial showing of the denial of a constitutional right.' 28 U.S.C. § 2253(c)(2)." Id. The Hunter court further stated "[a]lthough Hunter presents his arguments for a certificate of appealability as involving a denial of due process and ineffective assistance of counsel, Hunter's sentencing error did not give rise to a violation of the Constitution." Id. at 1191.
Accordingly, the Court ORDERS that Petitioner's Application for Certificate of Appealability (CV Dkt. 26) is DENIED. DONE and ORDERED in Tampa, Florida