Odoni v. United States

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

SIMON ANDREW ODONI,

Petitioner,

v. Case No: 8:16-cv-1231-T35AAS Case No. 8:08-cr-172-T35EAJ

UNITED STATES OF AMERICA,

Respondent.

ORDER This matter is before the Court on Petitioner Simon Andrew Odoni’s pro se Notice of Appeal, which is construed as a motion for a certificate of appealability (“COA”). (Civ. Doc. 85) Also before the Court is Odoni’s Application to Proceed in the District Court Without Prepaying Fees or Costs, which is construed as a motion to appeal in forma pauperis. (Civ. Doc. 87) The Court denied both (1) Odoni’s Amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence and (2) his Request for Leave to File Supplementary Documents in support of that motion. (Civ. Doc. 83) In his request for a COA of the Court’s decision, Odoni again contends that he possesses additional materials to support his Section 2255 motion, which he was prevented from filing due to pandemic restrictions in his place of incarceration. Odoni is not entitled to a COA. A prisoner moving under Section 2255 has no absolute entitlement to appeal a district court’s denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” To merit a COA, Odoni 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 Odoni fails to show that reasonable jurists would debate either the merits of the claims or the procedural issues, he is entitled to neither a COA nor an appeal in forma pauperis. Odoni’s motion for a COA (Civ. Doc. 85) is DENIED. Odoni’s motion for leave to appeal in forma pauperis (Civ. Doc. 87) is DENIED. Odoni must obtain permission from the appellate court to appeal in forma pauperis. DONE and ORDERED in Tampa, Florida, this 10th day of December 2020.

Vy / fi

UNITED STATES DISTRICT JUDGE

Copies furnished to: Counsel of Record Any Unrepresented Person