King v. United States

• Decision Date: 13 July 2011
• Docket Number: CRIM. NO. 2:06-cr-165,CASE NO. 2:09-cv-984
• Parties: JASON WILLIAM KING, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JASON WILLIAM KING, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CASE NO. 2:09-cv-984

CRIM. NO. 2:06-cr-165

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: July 13, 2011

JUDGE ALGENON L. MARBLEY

Magistrate Judge Kemp

OPINION AND ORDER

On January 3, 2011, the Court adopted the Report and Recommendation of the Magistrate Judge and denied petitioner's motion to vacate sentence which had been filed under 28 U.S.C. §2255. On March 27, some 83 days later, petitioner placed a motion for a certificate of appealability in the mailbox at his institution. It was filed in this Court on March 30,2011. He has not filed a notice of appeal.

The Court will construe petitioner's motion as a notice of appeal because it evidences a clear intent to appeal. See Freeman v. Pineda, Case No. 2:10-cv-35 (S.D. Ohio March 25, 2011), citing McMillan v. Barksdale, 823 F.2d 981, 983 (6th Cir. 1987). However, the notice is late. Because the United States is a party to this case, petitioner had only sixty days, or until March 4, 2011, in which to file any appeal. Fed.R.App.P. 4(a)(1)(B); United States v. Means, 133 F.3d 444, 450 (6th Cir. 1998) ("Under Fed. R.App. P. 4(a)(1), a would-be appellant in a civil proceeding to which the United States is a party has 60 days from the final judgment within which to file a notice of appeal"). Further, petitioner has provided no explanation for filing late, so the Court cannot construe anything in his request as amotion to extend the time for appeal.

When no timely appeal has been filed, the Court lacks jurisdiction to issue a certificate of appealability. Mattoon v. Davis, 2009 WL 367687 (E.D. Mich. February 11, 2009), citing McDaniel v. Wainwright, 404 F.2d 352, 352 (5th Cir.1968). Thus, the Court will deny the request for that reason.

The Court notes, however, that it would not likely issue such a certificate in any event. In ruling against petitioner in this case, the Court reached the merits of all of his claims and rejected them on their merits. Where the Court dismisses a claim on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Slack v. McDaniel, 529 U.S. 473, 483-44, (2000). To make a substantial showing of the denial of a constitutional right, a petitioner must show

that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were " 'adequate to deserve encouragement to proceed further.' " Barefoot, 463 U.S., at 893, and n. 4 ....

Id.

The request for a certificate of appealability does not address any of petitioner's claims specifically. Rather, petitioner simply asserts, generally, that "his petition show a ample amount of constitutional errors, and that any reasonable jurist could find the claimsdebatable or wrong." Motion for Certificate of Appealability, at 2. The Court disagrees.

It is not necessary to recite in detail the reasoning or conclusions reached both by the Magistrate Judge and by this Court in denying relief on the merits. As the Court explained in its Opinion and Order of January 3, 2011, none of petitioner's ineffective assistance of counsel claims have merit because, among other things, given the strong evidence from law enforcement officers that they identified petitioner as the person who engaged in drug transactions...