Opinion
Cause No.: 3:10-CV-174 RM, (arising out of 3:07-CR-111(02)) RM.
February 22, 2011
OPINION AND ORDER
Brandon Taylor has filed a letter asking for an extension on his motion for a certificate of appealability because he never received a copy of the opinion and order denying his habeas petition. Mr. Taylor's letter was timely filed and the court construes Mr. Taylor's letter as a motion for a certificate of appealability and a motion to proceed on appeal in forma pauperis.
To get a certificate of appealability Mr. Taylor must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). This means he must show "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.'" Miller-El v. Cockrell, 537 U.S. at 336. For the reasons stated in the opinion and order of January 19, 2011 denying his habeas petition, Mr. Taylor is far from meeting this burden. Mr. May's performance before and during trial was, without doubt, objectively reasonable and in no way prejudicial to Mr. Taylor's defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The issues Mr. Taylor raises shouldn't be encouraged to proceed further and his motion for a certificate of appealability is DENIED.
An appeal may not be taken in forma pauperis if it is not taken in good faith. 28 U.S.C. § 1915(a)(3). The appointment of CJA counsel during previous proceedings does not automatically entitle Mr. Taylor to proceed in forma pauperis on appeal. See FED. R. APP. PROC. 24(a)(3)(A). On the other hand, the denial of a certificate of appealability doesn't automatically require the denial of a motion to proceed in forma pauperis. Walker v. O'Brien, 216 F.3d 626, 631-32 (7th Cir. 2000). Rather, the court must decide whether "a reasonable person could suppose that the appeal has some merit." Id. at 632. For the reasons stated in the opinion and order of January 19, 2011 denying Mr. Taylor's habeas petition, an appeal wouldn't be taken in good faith, and the motion to proceed in forma pauperis is DENIED.
The court DIRECTS the clerk to forward a copy of the opinion an order of January 19, 2011 [Doc. No. 97] to the address Mr. Taylor provided in his letter [Doc. No. 101].
SO ORDERED.
ENTERED: February 22, 2011