Opinion
CAUSE NOs. 3:07-CV-084 RM and 3:07-CV-256RM (Arising from 3:05-CR-5(01) RM).
February 27, 2008
OPINION AND ORDER
On February 12, 2008, the court denied John Parker's petitions for post-conviction relief filed pursuant to 28 U.S.C. § 2255. Mr. Parker now asks that he be permitted to proceed in forma pauperis on his appeal. Specifically, Mr. Parker filed the standard form affidavit accompanying a motion for permission to appeal in forma pauperis, representing that he is indigent and unable to pay the filing fee. Although Mr. Parker hasn't requested that a certificate of appealability be issued, the court construes his motion as requesting such a certificate as well.
Issuance of a certificate of appealability requires the court to find that Mr. Parker has made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). He has not. Mr. Parker's claims regarding the court's jurisdiction to sentence him and the reasonableness of his sentence are without merit. Similarly, Mr. Parker's allegations regarding illegal search and seizure were decided on direct appeal and are barred by the law of the case doctrine. See Peoples v. United States, 403 F.3d 844, 846 (7th Cir. 2005). Finally, Mr. Parker cannot show that the strategic decisions of his trial counsel constitute a denial of effective assistance of counsel as guaranteed by the Sixth Amendment. See United States v. Rezin, 322 F.3d 443, 446 (7th Cir. 2003) (holding that attorneys have "no duty to make a frivolous argument."); see also Stevens v. McBride, 489 F.3d 883, 890 (7th Cir. 2007) ("The choice not to investigate a particular defense does not constitute deficient performance if the lawyer made a reasonable decision that makes particular investigations unnecessary."). Accordingly, his request for a certificate of appealability will be denied.
Federal Rule of Appellate Procedure 24(a)(3) provides that a financially indigent person may be permitted to proceed on appeal in forma pauperis unless the court "certifies that the appeal is not taken in good faith." In other words, the court must determine "that a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000). Because no reasonable person could find that Mr. Parker's appeal has any merit, the court concludes that his appeal is not taken in good faith, and his request for pauper status must be denied.
For the reasons stated above, the court DENIES Mr. Parker's motion for leave to appeal in forma pauperis and for a certificate of appealability [Doc. No. 68 of Cause No. 3:05cr00005].
SO ORDERED.