Frederick v. United States of America

Filing 6

ORDER denying 5 Motion for certificate of appealability. Signed by Judge James S. Moody, Jr on 2/12/2009. (LN)

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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 (Dkt. 4) of this Court's decision denying his motion for relief under 28 U.S.C. 2255 (Dkt. 3), which the Court construes as an application for a certificate of appealability ("COA") pursuant to Rule 22, Fed. R. App. P.,1 and 28 U.S.C. 22532 (Dkt. 5), see Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir. 1997). Petitioner did not pay the $455.00 appellate filing fee and costs or file a request for leave to proceed in forma pauperis. The Court addressed Petitioner's claims on the merits. 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), under the controlling standard, a petitioner must demonstrate that reasonable jurists would 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. CASE NO. 8:08-CV-2519-T-30TGW CRIM. CASE NO. 8:02-CR-484-T-30TGW "[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). 2 find the Court's assessment of the petitioner's constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001). Petitioner has failed to make this threshold showing. See Slack, 529 U.S. at 485. ACCORDINGLY, the Court ORDERS that Petitioner's Notice of Appeal, which is construed as an application for issuance of a certificate of appealability (Dkt. 5), is DENIED. DONE and ORDERED in Tampa, Florida on February 12, 2009. SA:sfc Copy furnished to: All Parties of Record 2

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