Boone v. Price et al (INMATE 3)

Filing 43

ORDER construing the 42 pro se Notice of Appeal as containing a motion for a certificate of appealability and a motion to appeal in forma pauperis; the Court finding that Boone has not made a substantial showing of the denial of a constitutional right. In addition, the Court is of the opinion that Boone's appeal has no legal or factual basis and, accordingly, is frivolous and not taken in good faith, as further set out in order; denying Boone's denying 42 Motion for Leave to Appeal in forma pauperis and 42 Motion for Certificate of Appealability. Signed by Chief Judge Emily C. Marks on 11/8/2021. (djy, ) Modified on 11/8/2021 to clarify text to reflect as furnished to Appeals clerk (qc/djy, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DAUOD BOONE, AIS # 276751,
Petitioner,
v.
CHERYL PRICE, et al.,
Respondents.

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CIVIL ACT. NO.2:15-cv-556-ECM
(WO)

ORDER
Now pending before the Court is Petitioner Daoud Boone’s pro se notice of appeal
(doc. 42) which the Court construes as containing a motion for a certificate of appealability
and a motion to appeal in forma pauperis. The motions are due to be denied.
A certificate of appealability is necessary before a petitioner may pursue an appeal
in a habeas corpus proceeding. See 28 U.S.C. § 2253(c). To mandate the issuance of a
certificate of appealability, a petitioner must make a “substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880,
893 (1983). Further, “[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.” 28 U.S.C. § 1915(a)(3). In making
this determination as to good faith, the Court must use an objective standard, such as
whether the appeal is “frivolous,” Coppedge v. United States, 369 U.S. 438, 445 (1962), or
“has no substantive merit,” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit
B May 1981) (per curiam).

Applying these standards, the Court finds that Boone has not made a substantial
showing of the denial of a constitutional right. In addition, the Court is of the opinion that
Boone’s appeal has no legal or factual basis and, accordingly, is frivolous and not taken in
good faith. See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).
Accordingly, it is
ORDERED that Boone’s motion for leave to appeal in forma pauperis and motion
for a certificate of appealability (doc. 42) are DENIED.
Done this 8th day of November, 2021.
/s/ Emily C. Marks
EMILY C. MARKS
CHIEF UNITED STATES DISTRICT JUDGE

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