Opinion
Case No. 3:05cv243/MCR/MD.
July 7, 2006
ORDER
This cause is before the court upon petitioner's notice of appeal (doc. 34), application for certificate of appealability (doc. 35) and motion for leave to appeal in forma pauperis (doc. 36). Petitioner is appealing this court's dismissal of his § 2254 habeas corpus petition as untimely.
Unless a certificate of appealability is issued, the petitioner may not take an appeal from the final order denying § 2254 relief. See 28 U.S.C. § 2253(c)(1)(A); Fed.R.App.P. 22(b)(1). Such a certificate 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). After review of the file, the court concludes that because the petitioner has not made a substantial showing of the denial of a constitutional right, and for the reasons set forth in this court's May 24, 2006 Order (doc. 32) adopting and incorporating the Magistrate Judge's Report and Recommendation filed on May 8, 2006 (doc. 30), a certificate of appealability will be denied. For the same reasons, there is no good faith basis for an appeal and petitioner is not entitled to proceed in forma pauperis. Fed.R.App.P. 24(a).
Accordingly, it is ORDERED:
1. Petitioner's notice of appeal (doc. 34) and application for certificate of appealability (doc. 35), are DENIED and no certificate shall issue.
2. Petitioner's motion for leave to appeal in forma pauperis (doc. 36) is DENIED. Petitioner shall pay the $455.00 filing fee within thirty (30) days of this order.
DONE AND ORDERED.