Opinion
NO. 5:10-CV-4 (MTT).
January 28, 2011
ORDER
Before the Court is petitioner GREGORY LOWE'S notice of appeal, construed as a motion for a Certificate of Appealability ("COA"), from the Court's December 8, 2010, order, which adopted Magistrate Judge Charles W. Weigle's recommendation that petitioner's 28 U.S.C. § 2254 motion be denied as untimely. Under section 2253(c)(2), a COA may issue only if the applicant makes "a substantial showing of the denial of a constitutional right." This requires a petitioner to demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." See also Slack v. McDaniel , 529 U.S. 473, 478 (2000).
For the reasons stated in Magistrate Judge Weigle's recommendation and this Court's order accepting the same, the Court finds reasonable jurists could not find that a dismissal of petitioner's claims was debatable or wrong. Accordingly, it is hereby ORDERED that petitioner's application for a COA be DENIED.
It is further ORDERED that petitioner's motion for leave to proceed IFP on appeal be DENIED AS MOOT. SO ORDERED, this 28th day of January, 2011.