Opinion
Cause No. 3:05-CV-616 RM, (Arising out of 3:02-CR-83 RM).
June 2, 2005
OPINION and ORDER
On January 31, 2005, Cory Thomas's petition filed pursuant to 28 U.S.C. § 2255 was denied based on Mr. Thomas's waiver, in his plea agreement, of his right to appeal and to file a habeas petition. Mr. Thomas has filed an appeal of that order and is before the court asking that he be permitted to proceed in forma pauperis on his appeal. Mr. Thomas represents that he is indigent and unable to pay the filing fee. Although Mr. Thomas hasn't requested that a certificate of appealability be issued, the court will construe his motion as requesting such a certificate, as well.
Issuance of a certificate of appealability requires the court to find that Mr. Thomas has made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). He has not. In his plea agreement, Mr. Thomas waived his right to file a petition under § 2255, and he hasn't alleged or advanced any claims relating to the negotiation of his plea agreement. See Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999) ("[T]he right to mount a collateral attack pursuant to § 2255 survives only with respect to those discrete claims which relate directly to the negotiation of the waiver."). His request for a certificate of appealability will be denied.
Federal Rule of Appellate Procedure 24(a)(3) provides that a financially indigent person may be permitted to proceed on appeal in forma pauperis unless the court "certifies that the appeal is not taken in good faith." In other words, the court must determine "that a reasonable person could suppose that the appeal has some merit."Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000). Because no reasonable person could find that Mr. Thomas's appeal has any merit, the court concludes that his appeal is not taken in good faith, and his request for pauper status must be denied.
Based on the foregoing, Mr. Thomas's motion for leave to proceed in forma pauperis on appeal and for a certificate of appealability [docket # 37] is DENIED.
SO ORDERED.