Opinion
Case No. 8:05-CV-1958-T-30TBM, 8:03-CR-88-T-30TBM.
April 10, 2006
ORDER
Petitioner has filed a Notice of Appeal (Dkt. 8), Request for Issuance of a Certificate of Appealability (Dkt. 9) ("COA") pursuant to Rule 22, Fed.R.App.P., and 28 U.S.C. § 2253, and Motion to Proceed In Forma Pauperis on appeal (Dkt. 10). Petitioner seeks review of the Court's January 23, 2006 decision denying his motion for relief under 28 U.S.C. § 2255 (CV Dkt. 4). In its order denying his § 2255 motion, the Court's addressed the merits of Petitioner's claims.
"Certificate of Appealability. (1) In a . . . 28 U.S.C. §§ 2255 proceeding, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. §§ 2253(c). If an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue. . . . If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals." Rule 22, Fed.R.App.P.
"[I]n . . . a proceeding under section 2255 . ., the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. . . . (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 — . . . (B) the final order in a proceeding under section 2255. . . . (2) A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c).
While issuance of a COA does not require a showing that the appeal will succeed, more than the absence of frivolity or the presence of good faith is required for a petitioner to clear this hurdle. See Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Under the controlling standard for issuance of a certificate of appealability where a district court has rejected a prisoner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001).
Because Petitioner has failed to demonstrate that reasonable jurists would find the Court's assessment of the claims presented in his § 2255 motion debatable or wrong, he has failed to satisfy the Slack test. 529 U.S. at 484.
ACCORDINGLY, the Court ORDERS that:
1. Petitioner's Request for Certificate of Appealability (Dkt. 9) is DENIED.
2. Petitioner's Motion to Proceed In Forma Pauperis on appeal (Dkt. 10) is DENIED.
DONE and ORDERED.