LEBED
v.
SECRETARY, DEPARTMENT OF CORRECTIONS

M.D. Fla. | 2020-08-05
No. 5:20-cv-345-Oc
District Court, M.D. Florida (2020)

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Holding

The court held that it lacked jurisdiction to grant a stay of the federal habeas limitations period or extend it when no actual petition had been filed.

Facts & Procedural History

Petitioner, an inmate, filed a motion seeking a stay of his federal habeas corpus limitations period to allow him time to file a state postconviction …

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics
28 U.S.C. § 2253(C)(2) Case Or Controversy Certificate Of Appealability Petition For Writ Of Habeas Corpus

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Opinion of the Court

ORDERED AND ADJUDGED: 1. This case is DISMISSED without prejudice for lack of

jurisdiction. If Petitioner wishes to file a federal habeas corpus petition, he must use the Court’s approved form for doing so. The Clerk is directed to send Petitioner a form for filing a habeas petition. 2. The Clerk shall enter judgment dismissing this case without prejudice, terminate any pending motions, and close the case. 3. If Petitioner appeals the dismissal of the case, the Court denies a certificate of appealability.2 Because this Court has determined that a certificate of appealability is not warranted, the Clerk shall terminate from the pending motions report any motion to proceed on appeal as a pauper that may be filed in this case. Such termination shall serve as a denial of the motion.

TIMOTHY J. CORRIGAN

United States District Judge

Jax-7/caw 8/3 C: Ronald Lebed, #158851

Footnotes
1 The dismissal of this case does not excuse Petitioner from complying with the one-year limitations period.
2 This Court should issue a certificate of appealability only if Petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial 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)). Here, after consideration of the record as a whole, a certificate of appealability is not warranted. DONE AND ORDERED at Jacksonville, Florida, this 5th day of August, 2020.

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