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U.S. v. Wilson, 06-215-JWD-RLB. (2018)

Court: District Court, M.D. Louisiana Number: infdco20180222d86 Visitors: 10
Filed: Feb. 21, 2018
Latest Update: Feb. 21, 2018
Summary: RULING AND ORDER JOHN W. deGRAVELLES , District Judge . Before the Court is the petitioner's Motion for Leave to Proceed In Forma Pauperis and Supporting Affidavit (R. Doc. 70), which this Court previously granted (R. Doc. 71), and the petitioner's Notice of Appeal (R. Doc. 69), both of which the Court interprets as an Application for Certificate of Appealability. An appeal may not be taken to the court of appeals from a final order in a proceeding under 28 U.S.C. 2255 "unless a circ
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RULING AND ORDER

Before the Court is the petitioner's Motion for Leave to Proceed In Forma Pauperis and Supporting Affidavit (R. Doc. 70), which this Court previously granted (R. Doc. 71), and the petitioner's Notice of Appeal (R. Doc. 69), both of which the Court interprets as an Application for Certificate of Appealability. An appeal may not be taken to the court of appeals from a final order in a proceeding under 28 U.S.C. § 2255 "unless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability may issue only if a § 2255 petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

In cases where the Court has rejected a petitioner's constitutional claims on substantive grounds, a petitioner must demonstrate that "jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005), quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In the instant case, the Court finds that reasonable jurists would not debate the denial of petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (R. Doc. 51) and the Movant Wilson's Supplemental Motion in Support of His Motion to Vacate in Light of Supreme Court and Fifth Circuit Precedent (R. Doc. 65), or the correctness of the substantive ruling (R. Doc. 67.) As such, the petitioner's Application shall be denied.

Additionally, pursuant to 28 U.S.C. § 2253(c), inasmuch as the petitioner is not allowed to appeal from the Judgment entered in this case because of the denial of a certificate of appealability, his motion to proceed in forma pauperis on appeal should also be denied. Consequently, the previous order granting the petitioner's motion to proceed in forma pauperis (R. Doc. 71) is vacated, and petitioner's motion is hereby denied.

Accordingly,

IT IS ORDERED that the petitioner's Application for Certificate of Appealability, made through the petitioner's Notice of Appeal (R. Doc. 69) and Motion for Leave to Proceed to Proceed In Forma Pauperis and Supporting Affidavit (R. Doc. 70), is hereby DENIED;

IT IS FURTHER ORDERED that the previous order (R. Doc. 71) granting the petitioner's Motion for Leave to Proceed to Proceed In Forma Pauperis and Supporting Affidavit (R. Doc. 70) is VACATED, and the petitioner's motion is hereby DENIED.

Source:  Leagle

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