Filed: Jan. 06, 2015
Latest Update: Jan. 06, 2015
Summary: ORDER DENYING CERTIFICATE OF APPEALABILITY TIMOTHY J. CORRIGAN, District Judge. This case is before the Court on Petitioner Robert Mills' Notice of Appeal (Doc. 23) 1 , as well as correspondence from the Clerk of Court of the Eleventh Circuit Court of Appeals, dated December 23, 2014, inquiring as to whether the Court has ruled on Petitioner's entitlement to a certificate of appealability (COA). A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's de
Summary: ORDER DENYING CERTIFICATE OF APPEALABILITY TIMOTHY J. CORRIGAN, District Judge. This case is before the Court on Petitioner Robert Mills' Notice of Appeal (Doc. 23) 1 , as well as correspondence from the Clerk of Court of the Eleventh Circuit Court of Appeals, dated December 23, 2014, inquiring as to whether the Court has ruled on Petitioner's entitlement to a certificate of appealability (COA). A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's den..
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ORDER DENYING CERTIFICATE OF APPEALABILITY
TIMOTHY J. CORRIGAN, District Judge.
This case is before the Court on Petitioner Robert Mills' Notice of Appeal (Doc. 23)1, as well as correspondence from the Clerk of Court of the Eleventh Circuit Court of Appeals, dated December 23, 2014, inquiring as to whether the Court has ruled on Petitioner's entitlement to a certificate of appealability (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. Upon review, the Court does not find that its assessment that Mills has not overcome procedural default by establishing "actual innocence," see Doc. 21, generally, was debatable or wrong.2 Accordingly, it is hereby ORDERED:
1. To the extent the Court construes Petitioner's Notice of Appeal as a motion for a certificate of appealability, the Court concludes that a certificate of appealability should be DENIED.
2. The Clerk is directed to forward a copy of this Order to the Clerk of Court for the Eleventh Circuit Court of Appeals.
DONE and ORDERED
