Opinion
Civil Action No. 04-71979.
February 1, 2006
ORDER (1) DENYING A CERTIFICATE OF APPEALABILITY, AND (2) DENYING MOTION TO PROCEED IN FORMA PAUPERIS
Petitioner filed a notice of appeal pursuant to 28 U.S.C. § 2255. In order to appeal the court's decision under § 2255, a certificate of appealability ("COA") must issue. See 28 U.S.C. § 2253(c)(1). Petitioner filed a Motion for Certificate of Appealability and Motion to Proceed In Forma Pauperis on December 29, 2005.
In the Court's December 1, 2005 Order denying Petitioner's Habeas Corpus petition, the Court explicitly declined to issue a certificate of appealability on any of Petitioner's claims:
The Court declines to issue a certificate of appealability on claims I, II, and IV, because reasonable jurists would not find the Court's assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000). The Court declines to issue a certificate of appealability on claim III because reasonable jurists would not find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether the Court's procedural ruling was correct. Id.
(Dec. 1, 2005 Order Denying Habeas Corpus Petition, 19) (Docket Entry 26). Thus, Petitioner's Motion for Certificate of Appeal ability is without merit.
Furthermore, Petitioner's Motion to Proceed In Forma Pauperis is likewise meritless because the appeal would be frivolous. See Hence v. Smith, 49 F. Supp. 2d 547, 549 (E.D. Mich. 1999).
Accordingly, IT IS ORDERED that Petitioner's Motion for Certificate of Appealability is DENIED;
IT IS FURTHER ORDERED that Petitioner's Motion to Proceed In Forma Pauperis is DENIED.