Ford v. Thomas ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12677 JAN 13, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:09-cv-02618-RBP-HGD
RUSSELL FORD,
llllllllllllllllllll Petitioner-Appellant,
versus
WILLIE THOMAS,
ATTORNEY GENERAL OF THE STATE OF ALABAMA,
llllllllllllllllll Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(January 13, 2011)
Before TJOFLAT, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Russell Ford, a Florida state prisoner proceeding through counsel, appeals
the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as
time-barred. Ford filed a notice of appeal, and the district court granted him a
certificate of appealability (COA) as to whether he had “made a substantial
showing of the denial of a constitutional right with respect to his claims related to
newly discovered evidence and alleged destruction of evidence.” Ford contends
Alabama’s post-conviction relief procedures are “fundamentally inadequate to
vindicate [his] substantive rights” because the district attorney destroyed evidence,
in bad faith and in violation of the Due Process Clause, which could have
substantiated his claim of actual innocence.
A federal habeas petitioner must obtain a COA from the district court to
appeal the denial of his § 2254 habeas petition. 28 U.S.C. § 2253(c)(1)(A).
However, “[w]hen a district court dismisses a petition as time-barred, it is
inappropriate to grant a COA on the [underlying] constitutional claim . . . .” Ross
v. Moore, 246 F.3d 1299, 1300 (11th Cir. 2001).1
1
In Ross we vacated the order granting a COA and remanded to the district court “for the
limited purpose of considering whether a COA should be granted on the question of whether
appellant’s habeas petition is time-barred.” Id.2
In light of the district court’s untimeliness ruling, it was inappropriate to
grant a COA on the issue of whether Ford had “made a substantial showing of the
denial of a constitutional right with respect to his claims related to newly
discovered evidence and alleged destruction of evidence.” Accordingly, we vacate
the order granting a COA and remand to the district court for the limited purpose
of considering whether a COA should be granted on the question of whether
Ford’s § 2254 petition is time-barred.
VACATED AND REMANDED.
3