Opinion
CASE NO. 5:03-cv-00140-MP-EMT.
May 1, 2007
ORDER
This matter is before the Court on Doc. 35, Motion for Certificate of Appealability and Doc. 36, Motion for Leave to Appeal in Forma Pauperis. With regard to Doc. 35, the court must determine whether Petitioner should be granted a Certificate of Appealability ("COA"), and if so, which issue(s) should be certified for appeal. Also, with regard to the motion to proceed in forma pauperis, the Court must consider whether the appeal is taken in good faith, as the term is used in Fed.R.App.P. 24(a)(3) and (4). In Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029 (2003), the Supreme Court stated the following standard:
§ 2253(c) permits the issuance of a COA only where a petitioner has made a "substantial showing of the denial of a constitutional right." In Slack, supra, at 483, 120 S.Ct. 1595, we recognized that Congress codified our standard, announced in Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), for determining what constitutes the requisite showing. Under the controlling standard, a petitioner must "sho[w] 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.'" 529 U.S., at 484, 120 S.Ct. 1595 (quoting Barefoot, supra, at 893, n. 4, 103 S.Ct. 3383).Id. at 336.
Here, although the Court continues to adhere to its decision in the order adopting the Report and Recommendation, Doc. 32, the issue of the trustworthiness and effect of the alleged videotaped witness recantation in this case is "adequate to deserve encouragement to proceed further." Likewise, the appeal is taken in good faith. Accordingly, it is hereby
ORDERED AND ADJUDGED:
The motion for Certificate of Appealability, doc. 35, is granted, and the Motion to proceed in forma pauperis on appeal, doc. 36, is also granted. A copy of this order should be sent to the Eleventh Circuit.
DONE AND ORDERED.