Prutting v. USA

Filing 19

ORDER denying 16 Motion for Certificate of Appealability. Signed by Judge Susan C Bucklew on 2/1/2017. (JD)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION KENNETH FLOYD PRUTTING, Petitioner, v. Case No. 8:16-cv-1673-T-24TGW UNITED STATES OF AMERICA, Defendant. _______________________________/ ORDER This cause comes before the Court on Petitioner’s Motion for a Certificate of Appealability (“COA”) regarding this Court’s Order (Doc. No. 12) dismissing his § 2255 motion. (Doc. No. 16). As explained below, the motion for a COA is DENIED. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Id. “A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make such a showing, Petitioner “must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel 529 U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve encouragement to proceed further,’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in these circumstances. Specifically, he seeks a COA in order to appeal this Court’s conclusions that: (1) his convictions for first and second degree robbery under Connecticut’s robbery statute qualify as violent felonies; and (2) his § 2255 motion is time-barred. However, given the case law, reasonable jurists would not find the issue of whether convictions for first and second degree robbery under Connecticut’s robbery statute qualify as violent felonies debatable. Accordingly, it is ORDERED AND ADJUDGED that Petitioner’s motion for a COA (Doc. No. 16) is DENIED. DONE AND ORDERED at Tampa, Florida, this 1st day of February, 2017. Copies to: All Parties and Counsel of Record 2

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