Opinion
Case No: 3:06cr85/LAC, 3:08cv119/LAC/MD.
September 11, 2008
ORDER
The defendant has filed a notice of appeal (doc. 83) which this court construes as a request for a certificate of appealability. Unless a certificate of appealability is issued, the defendant may not take an appeal from the final order denying Section 2255 relief. See 28 U.S.C. 2253(c)(1)(B). Because the defendant has not made a substantial showing of the denial of a constitutional right, see United States v. Futch, 518 F.3d 887 (11th Cir. 2008), and for the reasons set forth in this court's August 22, 2008 order (doc. 81) adopting and incorporating the Magistrate Judge's Report and Recommendation filed on August 8, 2008 (doc. 79) over defendant's objection, his request for a certificate of appealability is DENIED.
See Edwards v. United States, 114 F.3d 1083 (11TH Cir. 1997) (district courts must treat notices of appeal in Section 2255 actions as applications for certificates of appealability).
Defendant has not filed a motion for leave to proceed in forma pauperis. Because the court finds that the appeal is not taken in good faith and defendant is not otherwise entitled to so proceed, in the event that he did file such a motion, leave to so proceed should also be denied. Fed.R.App.P. 24(a)(3). Defendant shall pay the $455.00 filing fee within thirty days.