Opinion
Cause No. 3:05-CV-315 AS.
December 20, 2005
MEMORANDUM AND ORDER
On November 22, 2005, Mr. Scruggs filed a Notice of Appeal which this court construes as a Motion for Certificate of Appealability ("CA"). When applying for a CA, a petitioner must make "a `substantial showing of the denial of a federal right.'" Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir. 1971), cert. denied, 406 U.S. 925 (1972)). See also Stuart v. Gagnon, 837 F.2d 289 (7th Cir. 1987). Congress established this requirement in order to prevent frivolous appeals from delaying a state's ability to impose sentences. Barefoot v. Estelle, 463 U.S. at 892. The court's discretion on whether to grant or deny a CA is the best vehicle of separating meritorious from frivolous appeals. Id. at 893. A petitioner is not required to show that he would prevail on the merits, but he must show that the issues presented in his habeas petition are "debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are `adequate to deserve encouragement to proceed further.'" Id. at 893 n. 4 (quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga. 1980)). See also United States ex rel. Calhoun v. Pate, 341 F.2d 885 (7th Cir.), cert. denied, 382 U.S. 945 (1965).
Mr. Scruggs' petition was denied because he procedurally defaulted his claim in the state court by failing to timely perfect his appeal. Because Mr. Scruggs failed to show cause and prejudice for the default, his petition was denied. None of the issues presented to the court make a substantial showing of the denial of a constitutional right or present questions that are debatable among jurists of reason. See Kraushaar v. Flanigan, 45 F.3d. 1040 (7th Cir. 1995). Accordingly, petitioner's application for a Certificate of Appealability pursuant to Rule 22(b), Federal Rules of Appellate Procedure, is hereby DENIED because the petitioner has not made a substantial showing of the denial of a Constitutional right. The court advises the petitioner that pursuant to Fed.R.App.P. 22(b), where the district judge denies a certificate of appealability, "the applicant for the writ may then request issuance of the certificate by a circuit judge." The motion for leave to proceed in forma pauper is GRANTED.
IT IS SO ORDERED.