Burney v. United States

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

FREDERICK JAMES BURNEY, JR.,

Petitioner,

v. Case No.: 8:21-cv-1879-CEH-UAM Case No.: 8:18-cr-99-CEH-UAM UNITED STATES OF AMERICA,

Respondent. /

ORDER 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 time- barred. 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