Opinion
4:01CR244-2.
June 21, 2008
MEMORANDUM AND ORDER
This matter is before the court on the defendant's notice of appeal (filing 171) and the clerk's recent memo (filing 172) asking whether the defendant may proceed in forma pauperis and whether a certificate of appealability will issue. The pro se notice of appeal is filed with reference to the judgment entered on June 2, 2008 (filing 166), which dismissed the defendant's motion to vacate, set aside, or correct his sentence pursuant to28 U.S.C. § 2255 as barred by the statute of limitations.
The defendant previously filed a motion for relief from judgment, which the court denied on June 26, 2008.
Before the defendant's appeal can proceed, a certificate of appealability must issue. See Fed.R.App.P. 22(b). 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). When a district court has rejected a constitutional claim on the merits in the course of denying a § 2255 motion, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong" in order to meet the standard contained in § 2253(c). Slack v. McDaniel , 529 U.S. 473, 484 (2000). In contrast, when a district court denies a § 2255 motion on procedural grounds without reaching the applicant's underlying constitutional claims on the merits, a certificate of appealability should issue under § 2253(c) when "the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
For the reasons set forth in the memorandum and order that was entered on June 2, 2008 (filing 165), denying the defendant's § 2255 motion on initial review, and in the memorandum and order that was entered on June 26, 2008 (filing 170), denying the defendant's motion for relief from judgment (filing 167), the court concludes that the defendant has not made a substantial showing of the denial of a constitutional right as required by28 U.S.C. § 2253(c). Therefore, a certificate of appealability will not be issued.
The defendant was determined to be financially unable to obtain an adequate defense in his criminal case, and an attorney was appointed to represent him at trial. Because the appeal appears to be taken in good faith, even though a certificate of appealability will not be issued, the defendant may proceed in forma pauperis on appeal pursuant to Federal Rule of Appellate Procedure 24(a)(3).
IT IS ORDERED that:
1. A certificate of appealability will not issue in this case.
2. The defendant may proceed in forma pauperis on appeal.
3. The clerk of the court shall transmit a copy of this memorandum and order to the United States Court of Appeals for the Eighth Circuit.