Welch v. U.S.

Full title: DONALD WELCH, Petitioner, v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, M.D. Florida, Tampa Division

Date published: Aug 6, 2007

Case No. 8:05-CV-1144-T-30MAP, Crim Case No. 8:01-CR-445-T-30MAP (M.D. Fla. Aug. 6, 2007)

Opinion

Case No. 8:05-CV-1144-T-30MAP, Crim Case No. 8:01-CR-445-T-30MAP.

August 6, 2007

ORDER

JAMES MOODY JR., District Judge

Petitioner has filed a Notice of Appeal (CV Dkt. 22) of this Court's August 1, 2006 decision denying his motion for relief under 28 U.S.C. § 2255 (CV Dkt. 20), 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. § 2253 ² (CV Dkt. 23), see Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir. 1997). Petitioner has also filed a Motion for an Appointment of Counsel (CV Dkt. 24). Petitioner did not pay the $455.00 appellate filing fee and costs or file a request for leave to proceed in forma pauperis.

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.

2 "[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).

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 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.

Moreover, The Court finds that Plaintiff failed to perfect an appeal of the order by filing the notice required by Fed.R.App.P. 3(a) ³ and 4(a)(1)(B) within the allotted time.⁴ The case stands closed.

3 "An appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4." Fed.R.App.P. 3(a).

4 "When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered." Fed.R.App.P. 4(a)(1)(B).

The timely filing of a notice of appeal is "mandatory and jurisdictional." Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1323 (11^th Cir. 1996) (citation omitted). See also Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1114 (11^th Cir. 1993) ("[f]iling an appeal within the thirty day time limit has been construed as a mandatory precondition to this Court's exercise of jurisdiction. . . ." (quoting Borio v. Coastal Marine Constr. Co., 881 F.2d 1053, 1055 (11th Cir. 1989))).

A pro se plaintiff's allegations must be read in a liberal fashion. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (holding that "[ p] ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys"). However, a litigant is not excused from complying with a Court order or other judicial deadline because of his pro se status. See Wayne v. Jarvis, 197 F.3d 1098, 1104 (11th Cir. 1999) (holding that "the problem here is not one of construction; instead, the problem is one of lack of compliance with a deadline imposed by law. Liberal construction does not mean liberal deadlines").

ACCORDINGLY, the Court ORDERS that:

1. Petitioner's Notice of Appeal, which is construed as an application for issuance of a certificate of appealability, is untimely and is DENIED (CV Dkt. 23).

2. Petitioner's Motion for an Appointment of Counsel is DENIED (CV Dkt. 24).

DONE and ORDERED in Tampa, Florida.