Opinion
CASE NO. 6:08-cv-189-Orl-19GJK.
April 24, 2008
ORDER
This case is before the Court on the following motions:
1. Petitioner's Motion for Leave to Proceed In Forma Pauperis on Appeal (Doc. No. 12, filed April 21, 2008) is DENIED. Any appeal by Petitioner would not be taken in good faith under Federal Rule of Appellate Procedure 24(a) because Petitioner has failed to make a substantial showing of the deprivation of any federal constitutional right. Thus, Petitioner is not entitled to appeal as a pauper and shall pay the $455.00 appellate filing fee as required by 28 U.S.C. § 1915(a).
2. Petitioner's Request for a Certificate of Appealability (Doc. No. 11, filed April 21, 2008) is DENIED. This Court should grant an application for certificate of appealability only if the Petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner has failed to make a substantial showing of the denial of a constitutional right.
Although Petitioner filed the instant action seeking relief under 28 U.S.C. § 2241, this Court concluded that Petitioner was ultimately seeking relief pursuant § 2255 and was attempting to escape the restrictions on second or successive § 2255 motions by filing pursuant to § 2241. See Doc. No. 6. Therefore, Petitioner may not appeal unless a district judge issues a certificate of appealability under 28 U.S.C. § 2253(c). See Fed.R.App.P. 22(b)(1). Petitioner's Notice of Appeal (Doc. No. 11, filed April 21, 2008) has been construed as requesting a certificate of appealability. See Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir. 1997).
DONE AND ORDERED at Orlando, Florida.