Gut v. United States of America

Middle District of Florida, flmd-8:2016-cv-02225

ORDER ATTACHED summarily dismissing {{1}} Motion to Vacate/Set Aside/Correct Sentence (2255). The Clerk is directed to enter judgment for Defendant and to CLOSE the case. The Court declines to issue a certificate of appealability or to allow the Plaintiff to proceed on appeal IFP for the reasons stated in the attached order. Signed by Judge Richard A. Lazzara on 8/4/2016. (CCB)

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PageID 17 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MARTHA GUT Plaintiff, v. CASE NO. 8:16-cv-2225-T-26AAS UNITED STATES OF AMERICA, Defendant. / ORDER Plaintiff, proceeding pro se, has filed a Motion to Vacate pursuant to 28 U.S.C. § 2255, which motion was filed under the mailbox rule on July 28, 2016. A review of the Plaintiff's underlying criminal case indisputably reflects that she was sentenced on September 19, 2013, and she did not appeal.1 Consequently, because more than one year has elapsed since her judgment of conviction became final, her motion is due to be dismissed as time-barred under the provisions of § 2255(h)(1). Furthermore, Plaintiff fails to allege in her motion any grounds supporting collateral relief under the auspices of § 2255. ACCORDINGLY, it is ORDERED AND ADJUDGED as follows: 1) Plaintiff's Motion to Vacate (Dkt. 1) is summarily dismissed. 2) The Clerk is directed to enter judgment for the Defendant and to close this case. 1 See docket 53 in case number 8:13-cr-66-T-26. PageID 18 3) The Court declines to issue a certificate of appealability or to allow the Plaintiff to proceed on appeal in forma pauperis because she has failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2) and such an appeal would not be taken in good faith. See 28 U.S.C. 1915(a)(3). DONE AND ORDERED at Tampa, Florida, on August 4, 2016. s/Richard A. Lazzara RICHARD A. LAZZARA UNITED STATES DISTRICT JUDGE COPIES FURNISHED TO: Counsel of Record Plaintiff, pro se -2-