Weidner v. Florida

260 F. App'x 252

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 3, 2008
• Docket: No. 07-10611
• Status: Published

Opinion

PER CURIAM:

Petitioner Paul A. Weidner, a Florida state prisoner proceeding pro se, appeals the dismissal of his federal habeas corpus petition, 28 U.S.C. § 2254. The district court dismissed Weidner’s petition as time-barred, 28 U.S.C. § 2244(d)(1)(A), but then granted a certificate of appealability (“COA”) as to the underlying constitutional claims raised in the petition.

A federal habeas petitioner must obtain a COA from the district court to appeal the denial of his § 2254 habeas petition. 28 U.S.C. § 2253(c)(1)(A). However, “[w]hen a district court dismisses a petition as time-barred, it is inappropriate to grant a COA on the [underlying] constitutional claim.” Ross v. Moore, 246 F.3d 1299, 1300 (11th Cir.2001). As a result, in Ross we vacated the order granting a COA and remanded 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.” Id.

Here, the facts are identical to Ross. As a result, we vacate the order granting a COA and remand this case to the district court for the limited purpose of considering whether a COA should be granted on the question of whether Weidner’s § 2254 petition is time-barred.

VACATED AND REMANDED.