BURNEY
v.
UNITED STATES
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Burney sought a certificate of appealability for his time-barred § 2255 motion challenging his criminal conviction. The district court denied the certificate, finding that reasonable jurists would not debate either the merits of his claims or the procedural issues presented.
Burney is not entitled to a certificate of appealability or to appeal in forma pauperis because he fails to show that reasonable jurists would debate either the merits of his underlying claims or the procedural issues he seeks to raise.
[1] A certificate of appealability requires a petitioner to show that reasonable jurists would find debatable the merits of the underlying claims and the procedural issues ra…
[2] A motion under 28 U.S.C. …
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Join FLexlaw to unlock all legal intelligence“To obtain a certificate of appealability, the petitioner must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise.”
Establishes the legal standard for obtaining a certificate of appealability under 28 U.S.C. § 2253(c)(2)
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Join FLexlaw to unlock all legal intelligenceFrederick James Burney, Jr. filed a motion under 28 U.S.C. § 2255 challenging his conviction. A prior order dismissed this motion as untimely. Burney …
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A prior order dismissed as untimely Frederick James Burney, Jr.,’s motion under 28 U.S.C. § 2255. (Civ. Doc. 21) Subsequently, Burney filed a notice of appeal that includes a request for a certificate of appealability. (Civ. Doc. 25) Burney is not entitled to a certificate of appealability. Contrary to Burney’s assertion, the § 2255 motion was not dismissed “based upon personal animus toward [him]” (Civ. Doc. 25 at 2) but because, as explained in the order, his claims were timebarred. To obtain a certificate of appealability, the petitioner must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F. 3d 926, 935 (11th Cir 2001). Because Burney fails to show that reasonable jurists would debate either the merits of the claims or the procedural issues, he is not entitled to a certificate of appealability or to appeal in forma pauperis. Burney’s request for a certificate of appealability (Civ. Doc. 25) included in the notice of appeal is DENIED. Leave to appeal in forma pauperis is DENIED. Burney must obtain permission from the circuit court to appeal in forma pauperis. DONE and ORDERED in Tampa, Florida on July 22, 2024.
Chad Dao arndea Mo PDA yell Q_ Charlene Edwards Honeywell United States District Judge
Copies to: Pro Se Petitioner Counsel of Record
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Citator
Authorities Cited
- Slack v. McDANIEL, 529 U.S. 473 (U.S. 2000)
- Eagle v. Linahan, 279 F.3d 926 (11th Cir. 2001)