Opinion
5:91cr5014/LAC.
January 30, 2008
ORDER
The defendant has filed a notice of appeal (doc. 712) of this court's order denying his motion pursuant to 28 U.S.C. § 1651. (Doc. 711). The court noted that a writ of audita querela could not be granted when relief was cognizable under 28 U.S.C. § 2255, and that construing defendant's motion as one made pursuant to 28 U.S.C. § 2255, the court could not consider it as defendant had not obtained an order from the Eleventh Circuit authorizing the court to entertain a second and successive motion for such relief. The court construes defendant's notice of appeal 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, and for the reasons set forth in this court's order of November 30, 2007 (Doc. 711). Defendant has not filed a motion for leave to proceed in forma pauperis. Even if such a motion had been filed, the court finds that the appeal is not taken in good faith and the defendant is not otherwise entitled to so proceed. Fed.R.App.P. 24(a)(3). Defendant shall pay the $455.00 filing fee within thirty days.
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).
DONE AND ORDERED.