Opinion
Criminal Action Nos. 3:99-cr-086 3:00-cr-066, Civil Action Nos. 3:04-cv-256 263.
March 20, 2006
ORDER REGARDING NOTICE OF APPEAL
Defendant Richard Gunter has filed two motions to vacate under 28 U.S.C. § 2255 in this Court, one in Criminal Case No. 3:99-cr-086 (Civil Case No. 3:04-cv-256) and one in Criminal Case No. 3:00-cr-066 (Civil Case No. 3:04-cv-263). He has now filed a Notice of Appeal (Doc. No. 1107 in 3:99-cr-086) on which he has placed both criminal case numbers and Civil Case No. 3:04-cv-263.
Criminal Case No. 3:00-cr-066:
The Notice of Appeal is not effective as to Criminal Case No. 3:00-cr-066 because Judge Rice has not yet decided that case.
Criminal Case No. 3:99-cr-086:
As to Criminal Case No. 3:99-cr-86, the Notice of Appeal is timely.
Defendant failed to pay the appellate filing fee with the Notice of Appeal. Judge Rice determined in the judgment that Defendant would not be entitled to proceed on appeal in forma pauperis. Defendant is accordingly ordered to pay to the Clerk of this Court the appellate filing fee of $255.00 not later than April 18, 2006. Failure to pay will result in notice to the Court of Appeals and may result in their dismissing the appeal.
Defendant has also moved (Doc. No. 1108) to have the Clerk make all necessary copies for the Court of Appeals and to have the Clerk notify the United States of Defendant's filings, on grounds Petitioner is indigent. That Motion is denied because (1) Judge Rice has decided the Defendant may not proceed in forma pauperis on appeal and (2) indigency never excuses a party from giving notice of filings to opposing parties.
Defendant's Motion for Appointment of Counsel on appeal (Doc. No. 1109) is denied because Judge Rice has determined that no certificate of appealability should issue in this case. If the Court of Appeals grants a certificate of appealability, Defendant may apply to that court for appointment of counsel.