Washington v. United States of America
ORDER denying 11 Motion for Certificate of Appealability; denying 13 Motion for leave to appeal in forma pauperis. Signed by Judge Susan C Bucklew on 10/7/16. (JD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 8:16-cv-1823-T-24 AAS
UNITED STATES OF AMERICA,
This cause comes before the Court on Petitioner Washington’s request for a Certificate of
Appealability (“COA”) (Doc. No. 11) regarding this Court’s Order denying his § 2255 motion
(Doc. No. 8) and Motion to Proceed In Forma Pauperis (“IFP”) (Doc. No. 13). As explained
below, both motions are DENIED.
Petitioner pled guilty to conspiracy to commit a Hobbs Act robbery in violation of 18
U.S.C. § 1951 (count one), a substantive Hobbs Act robbery in violation of 18 U.S.C. §§ 1951
and 2 (count two), and carrying a firearm that was discharged in relation to a crime of violence the Hobbs Act conspiracy, as charged in count one and the substantive Hobbs Act robbery
charged in count two- in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(c)(1)(A)(iii) and 2. He
filed a § 2255 motion seeking relief under Johnson v. United States, 135 S.Ct. 2551 (2015),
which this Court denied, because Johnson did not address the statute under which Petitioner was
II. Request for COA
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 conclusion that he cannot seek relief under Johnson,
because a Hobbs Act robbery constitutes a crime of violence under the use of force clause of
§ 924(c)(3)(A). See In re Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016). Accordingly, the Court
finds that a COA is not warranted.
III. IFP Motion
Pursuant to 28 U.S.C. § 1915(a)(3), an appeal may not be pursued in forma pauperis if
the district court certifies in writing that it is not taken in good faith. Given this Court’s
conclusion that Petitioner’s appeal has no merit, the Court hereby certifies that the appeal is not
taken in good faith. As such, Petitioner’s request to appeal in forma pauperis is denied.
Accordingly, it is ORDERED AND ADJUDGED that:
Petitioner’s request for a COA (Doc. No. 11) is DENIED.
Petitioner’s Motion to Proceed IFP (Doc. No. 13) is DENIED.
DONE AND ORDERED at Tampa, Florida, this 7th day of October, 2016.
All Parties and Counsel of Record
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