Opinion
Case Number 2:10-CV-14280
05-01-2012
NICHOLAS KELLY, Petitioner, v. MITCH PERRY, Respondent,
Honorable Lawrence P. Zatkoff
ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY AND
APPLICATION TO PROCEED IN FORMA PAUPERIS
Petitioner has appealed the Court's judgment and order denying his petition for a writ of habeas corpus [dkt 14]. Currently pending before the Court is Petitioner's motion for certificate of appealability and application to proceed in forma pauperis on appeal [dkts 15 & 16]. In order to obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). 28 U.S.C. § 1915(a)(3) further provides that "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." In the Court's order denying his petition for a writ of habeas corpus, the Court expressly certified in writing the following:
For the reasons stated in this opinion, the Court will deny petitioner a certificate of appealability because jurists of reason would not find this Court's resolution of his claims to be debatable. . . . The Court will also deny petitioner leave to appeal in forma pauperis, because the appeal would be frivolous.[dkt 12].
Accordingly, for the reasons relied on by the Court in the order denying Petitioner's petition for a writ of habeas corpus, the Court finds that Petitioner's motion for certificate of appealability and application to proceed in forma pauperis on appeal [dkts 15 & 16] are DENIED.
IT IS SO ORDERED.
____________________________
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of this Order was served upon the attorneys of record by electronic or U.S. mail on May 1, 2012.
Marie E. Verlinde
Case Manager