ROSS v. MOORE

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United States Court of Appeals,Eleventh Circuit.

Bobby B. ROSS, Petitioner-Appellant, v. Michael MOORE, Respondent-Appellee.

No. 00-13646.

Decided: April 03, 2001

Before TJOFLAT and BLACK, Circuit Judges Bobby B. Ross, Arcadia, FL, pro se.

 Appellant has filed a motion for a certificate of appealability (COA), which this Court construes as a motion to expand the COA already granted by the district court.   The district court granted a COA as to “[w]hether Petitioner was denied the right to due process under the Fifth and Fourteenth Amendments to the United States Constitution.”   The issue upon which the district court granted a COA, however, conflicts with the district court's dismissal of the appellant's habeas petition, 28 U.S.C. § 2254, as time-barred under the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996.   When a district court dismisses a petition as time-barred, it is inappropriate to grant a COA on the constitutional claim e.g., the due process claim in this case.   Accordingly, this Court VACATES the order granting a COA and REMANDS the case 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.   Appellant's motion to expand the COA is DENIED AS MOOT.

BY THE COURT:

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