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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 1:91-cr-01032-MP-AK

JOHN COLLIER WIMS,

Defendants.

___________________________/

O R D E R 

This matter is before the Court on Doc. 788, Motion for Certificate of Appealability, filed

by John Collier Wims. Having considered the facts of this case and the applicable law, the Court

finds that Petitioner's request should be DENIED.

The COA requirement is a result of amendments made to 28 U.S.C. § 2253 by the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110

Stat. 1214. All appeals of habeas petitions which are filed after April 24, 1996, the effective date

of the AEDPA, require that a habeas petitioner first receive a COA before a circuit court can

hear the petitioner's appeal. See Hunter v. United States, 101 F.3d 1565, 1573 (11th Cir. 1996)

(en banc), cert. denied, 117 S.Ct. 1695, 137 L.Ed.2d 822 (1997). Pursuant to the statute, "[a]

certificate of appealability may issue . . . only if the applicant has made a substantial showing of

the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (emphasis added). Section

2253(c)(3) requires the district court to indicate which specific issues, if any, a habeas petitioner

is entitled to raise. In order to make the requisite "substantial showing of the denial of a

constitutional right" [28 U.S.C. § 2253(c)(2)], "a petitioner who has been denied relief in a

district court 'must demonstrate that the issues are debatable among jurists of reason; that a court

could resolve the issues [in a different manner]; or that the questions are adequate to deserve

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Case No: 1:91-cr-01032-MP-AK

encouragement to proceed further.'" Lozada v. Deeds, 498 U.S. 430, 432, 111 S.Ct. 860, 862,

112 L.Ed.2d 956 (1991) (emphasis and brackets in original) (quoting Barefoot v. Estelle, 463

U.S. 880, 893, n.4, 103 S.Ct. 3383, 3394, n.4, 77 L.Ed.2d 1090 (1983)) If a petitioner fails to

make such a showing, his or her request for a COA must be denied. See, e.g., United States v.

Riddick, 104 F.3d 1239, 1241 (10th Cir. 1997); Hohn v. United States, 99 F.3d 892, 893 (8th

Cir. 1996), petition for cert. filed (May 12, 1997) (No. 96-8986).

Previously, the Court entered an order denying Mr. Wims' § 2255 petition. Mr. Wims

then filed a Rule 59(e) motion arguing that the Court lacked subject matter jurisdiction to

sentence him to a mandatory minimum sentence because drug amounts were not charged in his

indictment. This argument was specifically raised and rejected in McCoy v. U.S., 266 F.3d 1245

(11th Cir. 2001). Accordingly, the motion to alter or amend, doc. 785, was denied, and no

reasonable jurists would debate the fact that petitioner's habeas corpus petition was properly

dismissed. Therefore, Petitioner cannot make a substantial showing of the violation of a

constitutional right and the Application for Certificate of Appealability is denied. 

Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. Petitioner's Notice of Appeal, construed as an Application for a Certificate of

Appealability (doc. 788) is DENIED.

2. The clerk is directed to forward a copy of this order and an updated docket sheet

to the Eleventh Circuit Court of Appeals.

DONE AND ORDERED this 27th day of April, 2006

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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