Frederick v. United States of America

Filing 23

ORDER denying 21 Motion for certificate of appealability; denying 22 Motion for leave to appeal in forma pauperis/affidavit of indigency. Signed by Judge James S. Moody, Jr on 11/12/2009. (LN)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION SAM FREDERICK, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent. ______________________________/ ORDER Petitioner has filed a Notice of Appeal (CV Dkt. 20) of this Court's October 5, 2009 decision denying his motion for reconsideration of the Court's February 2, 2009 order denying relief under 28 U.S.C. § 2255 (See CV Dkt. 19). The Court construes the Notice of Appeal as an application for a certificate of appealability ("COA") pursuant to Rule 22, Fed. R. App. P.,1 and 28 U.S.C. § 22532 (CV Dkt. 21), see Edwards v. United States, 114 F.3d CASE NO. 8:08-CV-2519-T-30TGW
CRIM. CASE NO. 8:02-CR-484-T-30TGW

1 "Certificate of Appealability. (1) 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.

"[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).

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1083, 1084 (11th Cir. 1997).3 Petitioner also has filed a request for leave to proceed in forma pauperis (CV Dkt. 22) The Court addressed Petitioner's § 2255 motion on the merits (See CV Dkt. 3). The Court denied Petitioner's motion for reconsideration because the Court had addressed all of Petitioner's claims in his § 2255 motion (See CV Dkt. 19). 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), "in cases involving denials of Rule 60(b) motions on procedural grounds without reaching the merits of any constitutional claims...a petitioner will be granted a certificate of appealability only if [he] makes both a substantial showing that he had a valid claim of the denial of a constitutional right, and a substantial showing that the procedural ruling is wrong[.]" Jackson v. Crosby, 437 F.3d 1290, 1295 (11th Cir. 2006) (quotations and citations omitted) (emphasis in original). Petitioner has failed to make this threshold showing.4 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 construed application for issuance of a certificate of appealability (CV Dkt. 21) is DENIED.

"[A] certificate of appealability is required for the appeal of any denial of a Rule 60(b) motion for relief from a judgment in a...[28 U.S.C.] § 2255 proceeding." Jackson v. Crosby, 437 F.3d 1290, 1294 (11th Cir. 2006)(citations omitted). The Court notes that the Eleventh Circuit Court of Appeals previously denied Petitioner's application for a certificate of appealability from this Court's denial of his § 2255 motion because Petitioner failed to demonstrate that reasonable jurists would find debatable the merits of his underlying claims (See CV Dkt. 15).
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2.

Petitioner's motion for leave to proceed on appeal in forma pauperis (CV Dkt. 22) is DENIED.

DONE and ORDERED in Tampa, Florida on November 12, 2009.

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