Austin v. United States of America

Filing 20

OPINION AND ORDER denying 18 Motion for certificate of appealability; denying 19 Motion for leave to appeal in forma pauperis/affidavit of indigency. Signed by Judge John E. Steele on 3/19/2009. (RKM)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION LUTHER LEON AUSTIN, Petitioner, -vsUNITED STATES OF AMERICA, Respondent. ___________________________________ Case No. 2:07-cv-616-FtM-29DNF Case No. 2:98-cr-127-FTM-29DNF

OPINION AND ORDER This matter comes before the Court on Petitioner's Request for Certificate of Appealability (Doc. #18) and Affidavit or

Declaration in Support of Motion for Leave to Proceed In Forma Pauperis (Doc. #19), construed as a motion to proceed in forma pauperis, both filed on March 19, 2009. The motions were filed in

conjunction with petitioner's Notice of Appeal (Doc. #17) filed on March 16, 2009. Under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order in a habeas proceeding unless a certificate of appealability issues. The decision to issue a certificate of

appealability requires "an overview of the claims in the habeas petition and a general assessment of their merits." Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). Specifically, where a district court has rejected a prisoner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists

would find the district court's assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, When

484 (2000); Peoples v. Haley, 227 F.3d 1342 (11th Cir. 2000).

the district court has rejected a claim on procedural grounds, the petitioner must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484; Franklin v. Hightower, 215 F.3d

1196, 1199 (11th Cir. 2000) (per curiam), cert. denied, 121 S. Ct. 1738 (2001). "This threshold inquiry does not require full

consideration of the factual or legal bases adduced in support of the claims." Miller-El v. Cockrell, 537 U.S. at 336.

On February 12, 2009, the Court entered an Opinion and Order (Doc. #14) dismissing the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 to the extent it challenged the sentence based upon an improper delegation as to restitution. On

March 3, 2009, petitioner filed a motion seeking reconsideration. On March 5, 2009, the Court issued an Order (Doc. #16) denying reconsideration. Upon review, the Court finds that petitioner has

failed to show that jurists of reason would find the Court's assessment of the constitutional claim debatable or wrong or that the Court was incorrect in its procedural rulings. As a result,

the motion to proceed in forma pauperis will also be denied. Accordingly, it is now
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ORDERED: 1. Petitioner's Request for Certificate of Appealability

(Doc. #18) is DENIED. 2. Petitioner's Affidavit or Declaration in Support of Motion for Leave to Proceed In Forma Pauperis (Doc. #19), construed as a motion to proceed in forma pauperis, is DENIED. DONE AND ORDERED at Fort Myers, Florida, this March, 2009. 19th day of

Copies: All Parties of Record United States Court of Appeals Eleventh Circuit 56 Forsyth Street, N.W. Atlanta, GA 30303

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