Opinion
No. 3:01-CV-259-D; No. 3:95-CR-236-D
May 23, 2001
CERTIFICATE AS TO APPEALABILITY
A Notice of Appeal has been filed in the above captioned action in which:
( ) the District Court has entered a final order in a habeas corpus proceeding brought pursuant to 28 U.S.C. § 2254.
(X) the District Court has entered a final order denying a "Petition to File a Delayed Out-Of-Time Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255 By Person in Federal Custody."
Pursuant to Federal Rule of Appellate Procedure 22(b) and 28 U.S.C. § 2253(c), the undersigned Magistrate Judge finds and recommends as follows:
IFP STATUS :
(X) the party appealing should be GRANTED leave to proceed in forma pauperis.
( ) the party appealing should be DENIED leave to proceed in forma pauperis for the following reason(s):
( ) the Court recommends that the District Court certify, pursuant to Fed.R.App.P. 24(a) and 28 U.S.C. § 1915(a)(3), that the appeal is not taken in good faith;
( ) the person appealing is not a pauper;
( ) the person appealing has not complied with the requirements of Rule 24 of the Federal Rules of Appellate Procedure and/or 28 U.S.C. § 1915(a)(1) as ordered by the Court. (See Notice of Deficiency and Order entered on).
( ) the party appealing paid the $105 appellate filing fee on.COA:
( ) a Certificate of Appealability should be GRANTED. (See issues set forth below).
(X) a Certificate of Appealability should be DENIED. (See reasons stated below).REASONS FOR DENIAL: For the reasons stated in the Findings, Conclusions and Recommendation of the United States Magistrate Judge, filed on March 8, 2001, which were adopted by the District Court on April 3, 2001, the Defendant has failed to demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000).
ORDER OF THE COURT ON THE FOREGOING RECOMMENDATION
Considering the record in this case and the above recommendation, and pursuant to Federal Rule of Appellate Procedure 22(b) and 28 U.S.C. § 2253 (c), the Court hereby finds and orders:IFP STATUS :
(X) the party appealing is GRANTED in forma pauperis status on appeal.
( ) the party appealing is DENIED in forma pauperis status on appeal for the following reasons:
( ) the Court certifies, pursuant to Fed.R.App.P. 24(a) and 28 U.S.C. § 1915 (a)(3), that the appeal is not taken in good faith. In support of this finding, the Court adopts and incorporates by reference the Magistrate Judge's Findings and Recommendation entered in this case on. Based upon the Magistrate Judge's findings, this Court finds that the appeal presents no legal points of arguable merit and is therefore frivolous. See Harkins v. Roberts, 935 F. Supp. 871, 873 (S.D. Miss. 1996) (citing Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983)).
( ) the person appealing is not a pauper;
( ) the person appealing has not complied with the requirements of Rule 24 of the Federal Rules of Appellate Procedure and /or 28 U.S.C. § 1915(a)(1) as ordered by the Court. (See Notice of Deficiency and Order entered on).
( ) the party appealing paid the $105 appellate filing fee on.COA:
( ) a Certificate of Appealability is GRANTED on the following issues:
(X) a Certificate of Appealability is DENIED. The Court hereby adopts and incorporates by reference the Magistrate Judge's Findings and Recommendation entered in this case on March 8, 2001, in support of its finding that Defendant has failed to demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 120 So. Ct. 1595, 1604, 146 L.Ed.2d 542 (2000).