Opinion
CAUSE NO. 1:95cr33, (1:02cv285).
May 12, 2011
OPINION AND ORDER
This matter is before the court on a request to proceed on appeal in forma pauperis, filed by the petitioner, Samuel L. Whitt ("Whitt") on May 2, 2011, as part of his Notice of Appeal. Whitt is seeking to appeal this court's April 21, 2011 Order denying his Rule 60(b) motion.
An appeal may not be taken in forma pauperis if the court determines that the appeal is not in good faith. 28 U.S.C. § 1915(a)(3). To determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit. Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000); Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000).
Under the circumstances of this case, a reasonable person could not suppose an appeal to have any merit. Whitt's Rule 60 motion was clearly a successive § 2255 petition. Accordingly, the request to appeal in forma pauperis is DENIED. Additionally, considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c), the Court DENIES a certificate of appealability. "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in these circumstances. Thus, no certificate of appealability shall issue.
Conclusion
Based on the foregoing, Whitt's request to proceed on appeal in forma pauperis [DE 199] is hereby DENIED. Further, the court DENIES a certificate of appealability.