Opinion
CASE NO. 8:04-CV-906-T-30EAJ, CRIMINAL CASE NO. 8:01-CR-443-T-30EAJ.
September 20, 2011
ORDER
Petitioner has filed a Notice of Appeal (CV Dkt. 22) of this Court's July 14, 2011 decision denying his Motion for Reconsideration of the Court's May 4, 2011 order denying Petitioner's Rule 60(b)(6) motion (see CV Dkt. 19). The Court construes the Notice of Appeal as an application for a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253 (CV Dkt. 24), see Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir. 1997). Petitioner did not pay the $455.00 appellate filing fee. Instead, he filed a request for leave to proceed on appeal in forma pauperis (CV Dkt. 23).
"[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. Therefore, the Court finds a COA should be denied as to the order on Petitioner's Motion for Reconsideration.
ACCORDINGLY, the Court ORDERS that:
1. Petitioner's motion for leave to appeal in forma pauperis (CV Dkt. 23) is DENIED.
2. Petitioner's construed application for issuance of a certificate of appealability (CV Dkt. 24) is DENIED.DONE and ORDERED in Tampa, Florida.