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Gordon v. United States

September 18, 2006

MICHAEL LEE GORDON, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Judge Graham

Magistrate Judge Abel

OPINION AND ORDER

On January 20, 2006, petitioner filed a notice of appeal of this Court's order of December 5, 2005, Doc. No. 301, denying his motions for relief from judgment. This matter is before the Court pursuant to a remand from the United States Court of Appeals for the Sixth Circuit for a ruling on petitioner's request for a certificate of appealability. For the reasons that follow, the request for a certificate of appealability is DENIED.

Pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A), a notice of appeal must be filed within thirty days after the judgment or order being appealed is entered. "A party's compliance with the time strictures of Rule 4(a)(1)(A) is 'mandatory and jurisdictional.'" Intera Corp., et al., v. Henderson III, et al., 428 F.3d 605, 611 (6th Cir. 2005), citing Peake v. First Nat'l Bank & Trust, 717 F.2d 1016, 1018 (6th Cir.1983); United States v. Means, 133 F.3d 444, 448 (6th Cir. 1998). Although petitioner's notice of appeal was not received until after the thirty day time period had run, the certificate of service indicates that petitioner deposited his motion with prison authorities for filing on December 27, 2005. Thus, this Court concludes that petitioner's request for a certificate of appealability is timely. See Houston v. Lack, 487 U.S. 266, 270-72 (1988). Additionally, on December 12 and 15, 2005, petitioner filed motions for reconsideration of the Court's December 5, 2005, order, which motions were denied on January 11, 2006. See Federal Rule of Appellate Procedure 4(a)(4)(A), (B).*fn1

Where the Court dismisses a claim on procedural grounds, a certificate of appealability should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.

Slack v. McDaniel, 120 S.Ct. 1595 (2000). Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id.

Upon review of the record, the Court concludes that petitioner has failed to establish that reasonable jurists could debate whether the Court was correct in its denial of his motions for relief from judgment and request for documents. Id. Petitioner's request for a certificate of appealability therefore is DENIED.

IT IS SO ORDERED.

JAMES L. GRAHAM United States ...


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