Russell Ford v. Willie Thomas, et al, No. 10-12677 (11th Cir. 2011)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS No. 10-12677 Non-Argument Calendar ________________________ ELEVENTH CIRCUIT JAN 13, 2011 JOHN LEY 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
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