Opinion
Case Nos. 3:02cr63-RV, 3:03cv451-RV/WCS.
February 22, 2006
ORDER ON § 2255 APPEAL
Defendant Mitchell filed a notice of appeal, application for certificate of appealability, and motion to proceed on appeal in forma pauperis. Docs. 106-108. Defendant appeals the denial of his motion to vacate sentence pursuant 28 U.S.C. § 2255, so a certificate of appealability is required. § 2253(c)(1)(B); Fed.R.App.P. 22(b)(1).
To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing 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.'"Slack v. McDaniel, 529 U.S. 473, 483-484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000); quoting, Barefoot v. Estelle, 463 U.S. 880, 893, n. 4, 103 S.Ct. 3383, 3394, n. 4, 77 L.Ed.2d 1090 (1983).
For the reasons set forth in the report and recommendation as adopted by the court, docs. 99 and 102 (incorporated herein by reference), Defendant is not entitled to a certificate of appealability as he has not made a substantial showing of the denial of a constitutional right. Leave to proceed in forma pauperis should also be denied. Fed.R.App.P. 24(a).
See also doc. 105, considering Defendant's objection (doc. 104) docketed after the report and recommendation had been adopted and judgment entered.
It is therefore ORDERED:
1. Defendant's application for certificate of appealability (doc. 107) is DENIED, and a certificate of appealability SHALL NOT ISSUE.
2. Defendant's motion to proceed on appeal in forma pauperis (doc. 108) is DENIED.
DONE AND ORDERED.