Opinion
Civil Action 3:19-CV-1826-L-BH
04-28-2023
STERIC PAUL MITCHELL, ID # 46136-177, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
Sam A. Lindsay United States District Judge
On March 30, 2023, United States Magistrate Judge Irma Carrillo Ramirez entered the Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 36), recommending that the court deny with prejudice pro se Petitioner Steric Paul Mitchell's (“Petitioner”) motion seeking a certificate of appealability (“COA”) (Doc. 33). The Report recommends the court deny the motion because Petitioner failed to demonstrate that his appeal presents an arguable point of legal merit, and is therefore not frivolous. Doc. 36 at 1. Further, Petitioner has not demonstrated that he is a pauper because his inmate trust account has sufficient funds to pay the applicable filing fees on appeal. Id. Petitioner did not file any objections to the Report, and the time to do so has passed.
Having reviewed the Motion, record, Report, and applicable law, the court determines that the findings and conclusions of the Magistrate Judge are correct, and accepts them as those of the court. Accordingly, the Motion seeking a certificate of appealability (Doc. 33) is denied with prejudice.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c), the court denies a certificate of appealability. The court determines that Petitioner has failed to show: (1) that reasonable jurists would find this court's “assessment of the constitutional claims debatable or wrong;” or (2) that reasonable jurists would find “it debatable whether the petition states a valid claim of the denial of a constitutional right” and “debatable whether [this court] was correct in its procedural ruling.” Slack, 529 U.S. at 484. In support of this determination, the court accepts and incorporates by reference the magistrate judge's report filed in this case. In the event that Petitioner files a notice of appeal, he must pay the $505 appellate filing fee or submit a motion to proceed in forma pauperis on appeal.
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows:
It is so ordered.
(a) Certificate of Appealability. The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue. If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. A motion to reconsider a denial does not extend the time to appeal.(b) Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to appeal an order entered under these rules. A timely notice of appeal must be filed even if the district court issues a certificate of appealability.