Opinion
3:96cr76/RV.
February 11, 2008
ORDER
The defendant has filed a notice of appeal of this court's order denying his motion pursuant to 28 U.S.C. § 1651(A) to challenge subject matter jurisdiction. (Doc. 182). It does not appear that a certificate of appealability is required under the circumstances of this case. See Finkelstein v. Spitzer, 455 F.3d 131, 132 (2nd Cir. 2006) (citing United States v. Baptiste, 223 F.3d 188, 189 n. 1 (3rd Cir. 2000)); United States v. Guerra, 187 Fed. Appx. 414, 415 (5th Cir. 2006); cf. Galatolo v. United States, 196 Fed. Appx. 854 (11th Cir. 2006); United States v. Sullivan, 2005 WL 2090236 (11th Cir. 2005) (denying certificate of appealability where § 1651 motion was construed ad impermissible second or successive § 2255 motion). Therefore, to the extent that defendant's notice of appeal is properly construed as a request for a certificate of appealability, defendant's request is denied as unnecessary. See Guerra, 187 Fed.Appx. at 415.
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. The court finds that the appeal is not taken in good faith and he is not otherwise entitled to so proceed. Fed.R.App.P. 24(a)(3). Defendant shall therefore pay the $455.00 filing fee within thirty days.
DONE AND ORDERED.