Bobby B. Ross v. Michael Moore

246 F.3d 1299

Opinion

BY THE COURT:

Appellant has filed a motion for a certificate of appealability (COA), which this Court construes as a motion to expand the COA already granted by the district court. The district court granted a COA as to “[w]hether Petitioner was denied the right to due process under the Fifth and Fourteenth Anendments to the United States Constitution.” The issue upon which the district court granted a COA, however, conflicts with the district court’s dismissal of the appellant’s habeas petition, 28 U.S.C. § 2254, as time-barred under the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996. When a district court dismisses a petition as time-barred, it is inappropriate to grant a COA on the constitutional claim e.g., the due process claim in this case. Accordingly,. this Court VACATES the order granting a COA and REMANDS the case to the district court for the limited purpose of considering whether a COA should be granted on the question of whether appellant’s habeas petition is time-barred. Appellant’s motion to expand the COA is DENIED AS MOOT.