Opinion
Case No. 96-80335
09-28-2018
UNITED STATES OF AMERICA, Plaintiff, v. CARLOS UNDRY HICKS, Defendant.
ORDER DENYING PETITIONER A CERTIFICATE OF APPEALABILITY
On June 29, 2018, the Court entered an order denying Carlos Undry Hicks's 28 U.S.C. § 2255 habeas petition, finding that the petition was "easily resolved on the merits." Hicks timely filed a notice of appeal.
Hicks may not proceed on appeal unless he first obtains a certificate of appealability from this Court or the Court of Appeals. 28 U.S.C. § 2253(c)(1); Fed. R. App. Proc. 22(b).
A certificate of appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a court rejects a habeas claim on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the court's assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). "A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The Court does not conduct a full merits review when applying this standard; it must limit its examination to a threshold inquiry into the underlying merit of the petitioner's claims. Id. at 336-37.
Hicks fails to make a substantial showing that he was denied a constitutional right. A certificate of appealability is not warranted; the Court declines to issue one. Id.
Additionally, the Court finds that Hicks should not be granted leave to proceed in forma pauperis on appeal; any appeal would be frivolous. See Fed. R. App. P. 24(a).
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge Dated: September 28, 2018