Scull v. Secretary, Department of Corrections et al

Filing 19

ORDER denying 16 Motion for certificate of appealability. Signed by Judge James S. Moody, Jr on 9/23/2009. (LN)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

JUAN CARLOS SCULL, Petitioner, -vsSECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents. _____________________________/ ORDER This matter is before the Court on Petitioner's Notice of Appeal (Dkt. 17), and motion for issuance of a certificate of appealability pursuant to Rule 22, Fed. R. App. P.,1 and 28 U.S.C. §2253 (Dkt. 16).2 Petitioner did not pay the appellate filing fee and costs or seek leave to proceed on appeal in forma pauperis. Case No. 8:08-CV-1233-T-30EAJ

"Certificate of Appealability. (1) In a habeas corpus proceeding in which the detention complained of arises from process issued by a state court, or in a 28 U.S.C. §§ 2255 proceeding, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. §§ 2253(c). If an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue. . . . If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals." Rule 22, Fed. R. App. P.
2

1

"[I]n a habeas corpus proceeding or a proceeding under section 2255 before a district judge, 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 -- (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court;. . . (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).

To merit a certificate of appealability, Petitioner must show that reasonable jurists would find debatable both (1) the merits of the underlying claim and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because the petition is time-barred and Petitioner has failed to make a sufficient showing of the "extraordinary circumstances" required to warrant equitable tolling of the limitations period (See Dkt. 14), Petitioner has failed to satisfy the second prong of the Slack test. 529 U.S. at 484. Petitioner has failed to make a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c). ACCORDINGLY, the Court ORDERS that Petitioner's motion for issuance of a certificate of appealability is DENIED (Dkt. 16). DONE and ORDERED in Tampa, Florida on September 23, 2009.

SA:sfc Copy furnished: Petitioner pro se Counsel of Record

2