Opinion
Case No: 2:16-cv-380-FtM-38CM
11-26-2018
FRANK MORSE, JR., Petitioner, v. FLORIDA ATTORNEY GENERAL and SECRETARY, DOC, Respondents.
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Before the Court is Petitioner's Notice of Appeal (Doc. 23) and Application for Certificate of Appealability (Doc. 24) filed November 19, 2018. Petitioner seeks to appeal the Court's October 9, 2018, Order (Doc. 22), which denied Petitioner's Motion to Alter Judgment. See Doc. 23 at 1. In his Motion to Alter Judgment, Petitioner sought reconsideration of the Court's May 8, 2018, Order dismissing Petitioner's petition filed pursuant to 28 U.S.C. § 2254 as successive. See Doc. 18. Petitioner asks the Court to issue a certificate of appealability in order that he may appeal the Court's May 8, 2018, Order. See Doc. 24 at 16.
A certificate of appealability(COA) typically is required for appeals from a final order denying habeas relief on the merits to a petitioner who is challenging his state detention. 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180,183 (2009). Here, the Court did not dismiss the petition on the merits but dismissed the petition because it lacked jurisdiction to consider a successive petition. See Doc. 18. Because the Court lacks jurisdiction to consider a successive petition, the Court lacks jurisdiction to grant a COA. See 28 U.S.C. § 2253(c); Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004) (per curiam); Boone v. Sec'y, Dep't of Corr., 377 F.3d 1315, 1317 (11th Cir. 2004); see also Scotton v. U.S., 2017 WL 7511339 *2 (11th Cir. 2017).
Nonetheless, because the Court's October 9, 2018, Order is a final order, Petitioner may seek review pursuant to 28 U.S.C. § 1291. Petitioner did not accompany his Notice of Appeal or Application for Certificate of Appealability with a request to proceed on appeal in forma pauperis. A review of the docket reveals that Petitioner paid the filing fee in this case at the time of filing. Based upon the record and applicable law, the Court finds that an appeal in this case is not in good faith. Because the Court has certified that this appeal is not taken in good faith, Petitioner must pay the applicable appellate filing fee or file a request to proceed in forma pauperis directly with the Eleventh Circuit Court of Appeals. See Fed. R. App. P. 24(a)(5).
Accordingly, it is now
ORDERED:
1. Petitioner's Application for Certificate of Appealability (Doc. 24) is DENIED.
2. Pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24(a)(4), the Court certifies that this appeal is not taken in good faith and the Clerk shall
immediately forward a copy of this Order to the Clerk for the United States Court of Appeals for the Eleventh Circuit
DONE and ORDERED in Fort Myers, Florida this 26th day of November 2018.
/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE SA: FTMP-1
Copies: All Parties of Record
Clerk, Eleventh Circuit Court of Appeals