Adams v. Holder et al

Filing 29

ORDER vacating 26 Order on Motion for Leave to Proceed in forma pauperis and denying application for Certificate of Appealability and 25 MOTION for Leave to Proceed in forma pauperis filed by Roland Adams. Ordered by Judge Clay D. Land on 5/27/2010. (esl)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION ROLAND ADAMS, Petitioner, v. ERIC HOLDER, et al., Respondent. : : : : : : : : :

CASE NO. 4:09-CV-149 CDL 28 U.S.C. § 2241 Habeas Corpus Petition

ORDER On May 14, 2010, the Court issued an Order Denying Petitioner's Certificate of Appealability and Motion to Proceed in forma pauperis. [Doc. 26]. Petitioner was informed that if he could not pay the total filing fee, that pursuant to 28 U.S.C. § 1915(b), the prison account cust o dian where Petitioner is incarcerated shall cause to be remitted to the Clerk of this Court monthly payments of 20% of the preceding month's income credited to Petitioner's account until the $455.00 appellate filing fee has been paid in full. However, the partial payment plan as provided by the Prison Litigation Reform Act should only be applied in § 1983 prisoner civil rights matters and not to petitions for habeas corpus. Therefore, the Court's previous Order that denied both Petitioner's Certificate of Appealability and Motion to Proceed in forma pauperis is hereby vacated and replaced with the following: Petitioner Adams filed a Notice of Appeal [Doc. 19] on April 23, 2010, from this court's Judgment denying his application for habeas corpus relief pursuant to 28 U.S.C. § 2241. [Doc. 17, 18]. Thereafter, on May 6, 2010, Petitioner filed a Motion for Leave to Proceed In Forma Pauperis on appeal. [Doc. 25].

Title 28, United States Code, Section 2253(c) provides: (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from -- (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of a process issued by a State court: or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under ¶ (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under ¶ (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). This court adopted the report and recommendation of the Magistrate Judge which found that Petitioner's various claims did not entitle him to the relief he sought. WHEREFORE, Petitioner Adams has failed to make a substantial showing of the denial of a constitutional right. Therefore, his Application for Certificate of Appealability is hereby

DENIED. Petitioner's motion to proceed in forma pauperis on appeal is also hereby DENIED as moot. SO ORDERED this 27th day of May, 2010.

S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE