Opinion
18 Civ. 2141(PAC) 16 Cr. 590 (PAC)
08-07-2018
COREY McGREGOR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.
OPINION & ORDER HONORABLE PAUL A. CROTTY, United States District Judge:
Petitioner Corey McGregor, pro se, moves for permission to appeal from the denial of his 28 U.S.C. § 2255 habeas petition in forma pauperis. The Court, however, never granted McGregor a certificate of appealability ("COA"), as is required to appeal the denial of a petition under § 2255. See 28 U.S.C. § 2253(c)(1) ("Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a proceeding under section 2255."). The Court declines to grant a COA now, as it requires "a substantial showing of the denial of a constitutional right." See id. § 2253(c)(2). The Court previously denied McGregors's petition because his argument that Hobbs Act Robbery is not a "crime of violence" under 18 U.S.C. § 924(c) is foreclosed by the Second Circuit's decision in United States v. Hill, 832 F.3d 135 (2d Cir. 2016), amended May 9, 2018. Thus, McGregor cannot make a substantial showing of the denial of a constitutional right.
Moreover, an appeal may not be taken in forma pauperis if it is not taken in good faith. 28 U.S.C. § 1915(a)(3). Good faith is demonstrated when a petitioner "seeks appellate review of any issue not frivolous." Coppedge v. United States, 369 U.S. 438, 445 (1962). "An appeal is frivolous where it lacks an arguable basis in law or fact." Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995). Given the clarity of the holding in Hill, the Court finds that an appeal of this issue would be frivolous and not taken in good faith. Thus, the Court denies McGregor's motion to proceed in forma pauperis on appeal. He may, however, move for such permission and for a COA from the Court of Appeals. See Coppedge, 369 U.S. at 445 ("If the District Court finds the application is not in good faith, and therefore denies leave to appeal in forma pauperis, the defendant may seek identical relief from the Court of Appeals."); Lozada v. United States, 107 F.3d 1011, 1017 (2d Cir. 1997) ("If the district judge denies a COA, a request may then be made to a court of appeals."), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). Dated: New York, New York
August 7, 2018
SO ORDERED
/s/_________
PAUL A. CROTTY
United States District Judge Copy mailed to: Corey McGregor
#75904-054
Federal Correctional Institution Ray Brook
P.O. Box 900
Ray Brook, NY 12977