Opinion
Case No: 3:02cr93/LAC, 3:05cv77/LAC/MD.
January 8, 2008
ORDER
The defendant has filed a request for a certificate of appealability (doc. 130/131) of this court's order denying his motion to vacate pursuant to 28 U.S.C. § 2255. He has also filed a motion for extension of time to file certificate of appealability one day out of time for excusable neglect. (Doc. 129). Although the cited "excuse" is nothing more than clerical error, the court will accept the untimely filing.
The court notes that the objections to the magistrate judge's report and recommendation were also untimely filed by counsel. (Doc. 123).
Unless a certificate of appealability is issued, the defendant may not take an appeal from a final order denying Section 2255 relief. See 28 U.S.C. 2253(c)(1)(B). Because the defendant has not made a substantial showing of the denial of a constitutional right, and for the reasons set forth in this court's October 31, 2007 order (doc. 127) adopting and incorporating the Magistrate Judge's Report and Recommendation filed on October 15, 2007 (doc. 119) over defendant's objection, his request for a certificate of appealability is DENIED. The $455.00 filing fee shall be paid within thirty days.
DONE AND ORDERED