Evans v. United States of America

Filing 21

ORDER denying 19 Motion for Certificate of Appealability. The Court also denies Evans IFP status on appeal. Signed by Judge B. Avant Edenfield on 10/9/2014. (loh)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
WAYNE EVANS,
Petitioner,
V

6: 13-cv-5
6: 1O-cr-29-01

.

UNITED STATES OF AMERICA,
Respondent.
ORDER
Wayne Evans has filed a Notice of
Appeal.' ECF No. 19. The Court construes
a notice of appeal as a request for a
Certificate of Appealability ("COA"). See
Edwards v. United States, 114 F.3d 1083,
1084 (11th Cir. 1997). Because the Court
can discern no COA-worthy issues, no COA
should issue.
The Court denied Evans's Motion to
Amend his complaint, which was based on
28 U.S.C. § 2255. ECF No. 18. Evans's
petition was denied on March 6, 2013, ECF
No. 6, and a judgment was entered on that
date, ECF No. 7. Evans did not seek to
amend his complaint until October 23, 2014,
ECF No. 17, and the Court therefore denied
his Motion as untimely, ECF No. 18 at 1.

'The Court notes that it denied Evans a COA in this
matter. See ECF Nos. 6 (adopting the Magistrate
Judge's recommendation that a COA be denied); 14
at 1 (reiterating the denial of the previous denial of a
COA in the adopted recommendation). However,
because Evans's current appeal concerns only the
Court's recent denial of his Motion to Amend, the
Court will reconsider whether a COA should issue.

The Court will issue a COA "only where
a petitioner has made a substantial showing
of the denial of a constitutional right."
Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal quotation marks omitted);
see also 28 U.S.C. § 2253(c)(2). The
petitioner "must show that reasonable jurists
could debate whether (or, for that matter,
agree that) the petition should have been
resolved in a different manner or that the
issues presented were adequate to deserve
encouragement to proceed further." MillerEl, 537 U.S. at 336 (alteration and internal
quotation marks omitted).
When the district court denies a
habeas petition on procedural
grounds without reaching the
prisoner's underlying constitutional
claim, a COA should issue when the
prisoner shows, at least, that jurists
of reason would find it debatable
whether the petition states a valid
claim of the denial of a constitutional
right and that jurists of reason would
find it debatable whether the district
court was correct in its procedural
ruling.

Slack v. McDaniel, 529 U.S. 473, 484
(2000) (emphasis added).
Evans's justification for the amendment
he sought was Federal Rule of Civil
Procedure 15, and the Court denied his
Motion because Rule 15 has no application
after the entry of a judgment. See ECF No.
18 at 1; see also Lee v. Alachua Cnty., Fla.,
461 F. App'x 859, 860 (11th Cir. 2012)
("Rule 15 has no application, however,
'once the district court has dismissed the
complaint and entered final judgment for the

defendant." (quoting Jacobs v. TempurPedic Intl, Inc., 626 F.3d 1327, 1344 (11th
Cir. 2010)). Therefore, the Court finds that
reasonable jurists would not disagree that
the ruling was correct.
Evans also impliedly moves for leave to
proceed in forma pauperis ("IFP") on
appeal. Because the Court can discern no
non-frivolous issues to raise on appeal, an
appeal would not be taken in good faith.
Therefore, IFP status on appeal is
inappropriate. 28 U.S.C. § 1915(a)(3).
The Court DENIES Evans's request for
a COA, ECF No. 19, and also DENIES
Evans 1FF status on appeal.

This ,

day of December 2014.

A T DENFIELDj6GE
UNITED STATES DISiCT COURT
SOUTHERN DISTRICT OF GEORGIA

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