Opinion
3:06cr11/LAC, 3:07cv261/LAC/MD.
September 2, 2008
ORDER
Defendant has filed a motion for extension of time to file an application for certificate of appealability. (Doc. 79). He was previously advised that no further extensions would be granted in this case (doc. 76), and his request will therefore be denied. He has also filed a notice of appeal (doc. 77) which this court may construe 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 May 14, 2008 order (doc. 69) adopting and incorporating the Magistrate Judge's Report and Recommendation (doc. 67), and the court's August 21, 2008 order considering defendant's late-filed objections to the report and recommendation and conducting a de novo review thereof (doc. 76), 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 would also be denied. Fed.R.App.P. 24(a)(3). Defendant shall pay the $455.00 filing fee within thirty days.
DONE AND ORDERED.