Holmes v. Kemp et al

Filing 27

ORDER finding as moot 26 Motion for Leave to Appeal in forma pauperis; construing Petitioner's Notice of Appeal as an Application for a Certificate of Appealability and denying the same. Ordered by Judge Hugh Lawson on 12/01/2008. (nbp)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION TYRON MARK HOLMES, Petitioner VS. STEPHEN ROBERTS, : Respondent : _____________________________________ : : : : : :

:

NO. 5:07-cv-269 (HL)
ORDER

Before the Court is petitioner TYRON MARK HOLMES'S notice of appeal (Tab # 24) from the Court's September 26, 2008 order, which adopted Magistrate Judge Claude W. Hicks's recommendation that petitioner's 28 U.S.C. § 2254 motion be denied as untimely. The Eleventh Circuit Court of Appeals has mandated that the Court construe petitioner's notice of appeal as an application for a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253(c). Edwards v. United States, 114 F.3d 1083 (11th Cir. 1997). Under section 2253(c), a COA may issue only if the applicant has made a substantial showing of the denial of a constitutional right. For the reasons stated in Magistrate Judge Hicks's recommendation and this Court's order accepting the same, the Court finds that petitioner has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Accordingly, the application for a COA is DENIED. Also before the Court is petitioner's motion for leave to proceed in forma pauperis on appeal (Tab # 26). Said motion is DENIED AS MOOT. SO ORDERED, this 1st day of December, 2008.

s/ Hugh Lawson HUGH LAWSON UNITED STATES DISTRICT JUDGE cr