Patrick Josepph Charest v. Billy Mitchem

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15647
Non-Argument Calendar
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D.C. Docket No. 1:10-cv-00067-CG-C
PATRICK JOSEPPH CHAREST,
Petitioner - Appellant,
versus
BILLY MITCHEM,
Respondent - Appellee.
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Appeal from the United States District Court
for the Southern District of Alabama
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(February 13, 2015)
Before HULL, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Patrick Joseph Charest, proceeding pro se, appeals the district court’s order
dismissing his 28 U.S.C. § 2254 petition on jurisdictional grounds and, in the
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alternative, denying it as an abuse of the writ and untimely. The district court
granted a certificate of appealability on the following question:
Whether Charest’s current habeas petition was a second or successive
petition and subject to dismissal for lack of jurisdiction, or whether his
2005 sentence modification did not constitute a new and intervening
judgment which, pursuant to Magwood v. Patterson, 561 U.S. 320,
130 S. Ct. 2788 (2010), would restart the one-year period for filing a
habeas petition.
We conclude that this COA was improvidently granted because it fails to indicate
that jurists of reason would find Charest’s underlying jurisdictional arguments
debatable, insofar as he needed to make a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,
484, 120 S. Ct. 1595, 1604 (2000). We therefore vacate the COA and remand to
the district court to consider whether Charest has made a substantial showing of the
denial of a constitutional right, in conformity with Slack. See Spencer v. United
States, No.10-10676, ___ F.3d ___, ___, 2014 WL 6234529, at *4 (11th Cir. Nov.
14, 2014) (en banc) (“Going forward, a certificate of appealability, whether issued
by this Court or a district court, must specify what constitutional issue jurists of
reason would find debatable. . . . A failure to specify that issue would violate the
text enacted by Congress . . . and will result in the vacatur of the certificate.”).
The certificate of appealability is VACATED, and the case is
REMANDED.
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