Opinion
Civil Action 2:07-cv-00667.
May 24, 2010
ORDER
Petitioner Barnett has filed a notice of appeal from the Court's March 19, 2010 judgment dismissing his petition for writ of habeas corpus under 28 U.S.C. § 2254. This matter is before the Court on petitioner's application to proceed in forma pauperis on appeal. Before a petitioner can appeal a judgment dismissing a § 2254 action, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Rule 22(b), Federal Rules of Appellate Procedure.
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). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880, 893 (1983). Slack v. McDaniel, 529 U.S. 473, 483 (2000). To make a substantial showing of the denial of a constitutional right, a petitioner must show
that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "`adequate to deserve encouragement to proceed further.'" Barefoot, 463 U.S., at 893, and n. 4. . . .529 U.S. at 484.
Although this Court reaffirms its holding that petitioner was not denied any constitutional right, the Court recognizes that reasonable jurists could debate whether grounds one and two could have been resolved in a different manner.
Accordingly, petitioner's request for a certificate of appealability is GRANTED. Petitioner's request to proceed on appeal in forma pauperis is GRANTED.