Meza v. United States of America

Middle District of Florida, flmd-8:2016-cv-03324

ORDER dismissing as time-barred {{1}} Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to terminate any pending motions and close this case. The Clerk is directed to terminate from pending status the motion to vacate found at 33 in the underlying criminal case, case 8:11-cr-441-T-30-AEP. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr. on 12/7/2016. (LN)

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PageID 102 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION HECTOR MEZA, JR., Petitioner, v. Case No: 8:16-cv-3324-T-30AEP Criminal No: 8:11-cr-441-T-30AEP UNITED STATES OF AMERICA, Respondent. ________________________________/ ORDER On March 25, 2016, Defendant Hector Meza Jr. filed a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. section 2255. (CV1 1 Doc. 1). This Court ordered Defendant to show cause why his motion should not be dismissed as time-barred. (CV1 Doc. 2). After considering his response, the Court dismissed Defendant's motion as untimely under section 2255(f). (CV1 Doc. 4). Defendant now files a second section 2255 motion (CV2 2 Doc. 1), arguing that his prior motion was—and, by extension, the present motion is—timely. Yet Defendant provides no argument upon which this Court could conclude its previously ruling was incorrect or that the present motion is timely. Defendant's motion, therefore, is denied for the reasons stated in the Court's prior order. 1 The designation "CV1" refers to docket entries in Petitioner's prior case, 8:16-cv-737-T-30AEP. 2 The designation "CV2" refers to docket entries in this case, 8:16-cv-3324-T-30AEP. PageID 103 Accordingly, it is therefore ORDERED AND ADJUDGED that: 1. Defendant Hector Meza Jr.'s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (CV2 Doc. 1) is DISMISSED as time-barred. 2. The Clerk is directed to terminate any pending motions and close this case. 3. The Clerk is directed to terminate from pending status the motion to vacate found at Doc. 33 in the underlying criminal case, case 8:11-cr-441-T-30-AEP. CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability ("COA"). Id. "A [COA] may issue. . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Petitioner "'must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong,'" Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks omitted). Petitioner has not made the requisite showing in these circumstances. 2 PageID 104 Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. DONE and ORDERED in Tampa, Florida, this 7th day of December, 2016. Copies furnished to: Counsel/Parties of Record 3