Opinion
Case Number: 07-13441.
July 7, 2009
ORDER GRANTING PETITIONER'S APPLICATION TO PROCEED IN FORMA PAUPERIS ON APPEAL BUT DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner has appealed the Court's Order and Judgment denying his habeas corpus petition. The Court must treat the notice of appeal as an application for a certificate of appealability. Slack v. McDaniel, 529 U.S. 473, 483 (2000).
"[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no automatic right to appeal a district court's denial or dismissal of the petition. Instead, [the] petitioner must first seek and obtain a [certificate of appealability.]" Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). 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). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. at 484.
The habeas petition asserts three claims regarding Petitioner's sentence. The Court rejected the claims because two of them allege state law issues, which are not cognizable on habeas review, and the remaining claim fails to establish a due process violation under Townsend v. Burke, 334 U.S. 736 (1948). Reasonable jurists would not disagree with the Court's resolution of Petitioner's claims, and the issues do not warrant encouragement to proceed further. Accordingly, the Court DECLINES to issue a certificate of appealability. Petitioner nevertheless may pursue his appeal in forma pauperis, because an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3); Fed.R.App.P. 24(a)(4)(B). His application to proceed without prepayment of the appellate filing fee [Dkt. # 17, June 8, 2009] is GRANTED.