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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. 1:94-cr-01011-MP-AK

EVERETTE JAMEL TAYLOR,

Defendant.

________________________________/

O R D E R

Defendant Taylor has filed a Notice of Appeal in this case, Doc. 973, which the Court

construes as an application for a Certificate of Appealability (“COA”). The Court therefore has

two issues before it: whether Defendant should be granted a Certificate of Appealability, and if

so, which issues should be certified for appeal. Having considered the facts of this case and the

applicable law, the Court finds that Defendant’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”

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Case No: 1:94-cr-01011-MP-AK

under 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 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 defendant 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).

Defendant’s Motion to Recall Judgment, Doc. 954, was dismissed by the Court as an

unauthorized second or successive motion to vacate. Because Defendant sought to relitigate

claims presented in a prior habeas application, the Court found that Defendant was prohibited

from filing the motion to vacate without leave from the Eleventh Circuit. Accordingly, no

reasonable jurists would debate the fact that Defendant’s Motion to Recall Judgment was

properly dismissed. Therefore, Defendant 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. Defendant’s Notice of Appeal, construed as an Application for a Certificate of

Appealability, Doc. 973, 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 1stday of October, 2007

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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