Miller v. United States of America

Filing 15

OPINION AND ORDER denying 14 Motion for certificate of appealability. Signed by Judge John E. Steele on 3/12/2009. (RKM)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION DAMIAN FITZGERALD MILLER, Petitioner, -vsUNITED STATES OF AMERICA, Respondent. ___________________________________ OPINION AND ORDER This matter comes before the Court on Petitioner's Notice of Appeal (Doc. #13) filed on March 9, 2009. Pursuant to FED. R. APP. Case No. 2:07-cv-685-FtM-29DNF Case No. 2:03-cr-74-FTM-29DNF

P. 22(b)(1), this is deemed to also include an application for certificate of appealability (Doc. #14). 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 January 9, 2009, the Court entered an Opinion and Order (Doc. #11) denying petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, and to Correct, Sentence By a Person in Federal Custody as to all claims. same day. Judgment (Doc. #12) was entered on the

Upon review, the Court finds 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. Accordingly, it is now ORDERED: Petitioner's application for certificate of appealability (Doc. #14), deemed included in the Notice of Appeal (Doc. #13), is DENIED. DONE AND ORDERED at Fort Myers, Florida, this March, 2009. 12th day of

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

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