Milovanovic v. U.S.

Full title: GORAN MILOVANOVIC, Petitioner, v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, M.D. Florida, Tampa Division

Date published: Apr 13, 2006

Case No. 8:05-CV-2319-T-30MSS, 8:03-CR-240-T-30MSS (M.D. Fla. Apr. 13, 2006)

Opinion

Case Nos. 8:05-CV-2319-T-30MSS, 8:03-CR-240-T-30MSS.

April 13, 2006

ORDER

JAMES MOODY JR., District Judge

Petitioner has filed a Notice of Appeal of this Court's January 11, 2006 decision denying his motion for relief under 28 U.S.C. §§ 2255 (CV Dkt. 8) and a Motion for Leave to Proceed In Forma Pauperis (CV Dkt. 10). The Court construes the Notice of Appeal as an application for a certificate of appealability ("COA") pursuant to Rule 22, Fed.R.App.P.,¹ and 28 U.S.C. § 2253 ² (CV Dkt. 9).

1 "Certificate of Appealability. (1) 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 state why 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.

2 "[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).

While issuance of a COA does not require a showing that the appeal will succeed, see Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003), under the controlling standard, a petitioner must demonstrate that reasonable jurists would find the Court's assessment of the petitioner's constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001). Petitioner has failed to make this threshold showing. See Slack, 529 U.S. at 485.

ACCORDINGLY, the Court ORDERS that:

1. Petitioner's Notice of Appeal, which is construed as an application for issuance of a certificate of appealability (CV Dkt. 9), is DENIED.

2. The Motion to Proceed In Forma Pauperis (CV Dkt. 10) is DENIED. DONE and ORDERED.