Marshall v. United States of America (INMATE 3)

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

ROBERT MARSHALL, ) ) Petitioner, ) ) v. ) CASE NO. 2:16-CV-477-WKW ) [WO] UNITED STATES OF AMERICA, ) ) Respondent. )

ORDER

Before the court is Petitioner’s pro se Request for Issuance of a Certificate of Appealability, which is construed as a motion. (Doc. # 68.) The motion is due to be denied as moot. Petitioner appeals the final judgment entered on June 8, 2022, dismissing this action for lack of jurisdiction for failure of Petitioner to obtain the requisite order from the Eleventh Circuit Court of Appeals authorizing a federal district court to consider his successive petition. (Docs. # 62, 64–65.) However, a certificate of appealability is not required for an appeal where the action is dismissed for lack of subject matter jurisdiction. See Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004) (holding that a dismissal for lack of subject matter jurisdiction is not “a final order in a habeas corpus proceeding” for purposes of 28 U.S.C. § 2253(c) and, thus, does not require a certificate of appealability). For the foregoing reason, it is ORDERED that Petitioner’s Motion for Issuance of a Certificate of Appealability (Doc. # 68) is DENIED as moot.

DONE this 2nd day of September, 2022. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE