Opinion
CAUSE NO. 3:07-CV-050 RM.
May 21, 2008
OPINION AND ORDER
Walter M. Leach, a pro se prisoner, filed a notice of appeal. He did not seek a certificate of appealability nor leave to proceed in forma pauperis. Nevertheless, pursuant to FED. R. APP. P. 22(b)(1), "[i]f an applicant files a notice of appeal [in a habeas corpus case], the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue."
To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot [v. Estelle, 463 U.S. 880 (1983)], includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quotation marks and citation omitted). As explained in the order denying the petition, it is clearly untimely. Despite Mr. Leach's arguments that his improper state filings continued to toll the 1-year period of limitation, based on the current law, there is no reasonable debate that this issue could be resolved otherwise. Therefore the court will not issue a certificate of appealability.
"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). For the same reasons that the court denied a certificate of appealability, this appeal is not taken in good faith.
For the foregoing reasons, the court DENIES Walter M. Leach a certificate of appealability and DENIES Walter M. Leach leave to appeal in forma pauperis.
SO ORDERED.