Carswell v. Walrath
Filing
29
ORDER denying 26 Motion for Certificate of Appealability; denying 27 Motion for Leave to Appeal in forma pauperis. Ordered by Judge C. Ashley Royal on 4/20/12 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ROBERT CARSWELL,
:
:
Petitioner,
:
:
v.
:
:
Warden BARBARA WALRATH,
:
:
Respondent.
:
____________________________________
CASE NO.
5:10‐CV‐487 (CAR)
ORDER
Currently before the Court is Petitioner Robert Carswell’s Motion for Certificate
of Appealability (“COA”) [Doc. 26] from the Court’s March 15, 2012 Order, which
accepted the United States Magistrate Judge’s recommendation that Petitioner’s 28
U.S.C. § 2241 petition be dismissed as moot. Petitioner also filed a Motion for Leave to
Appeal in forma pauperis [Doc. 27].
“A [COA] may issue . . . only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1). To merit a COA, Petitioner
must show that reasonable jurists would find debatable both (1) the merits of the
underlying claim and (2) the procedural issues he seeks to raise. 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 483‐84 (2000) (explaining how to satisfy this showing)
(citations omitted). Petitioner has not made such a showing. Therefore, his application
for a COA is DENIED.
Federal law generally permits the commencement of a criminal appeal without
prepayment of fees “unless the trial court certifies in writing that it is not taken in good
faith.” See 28 U.S.C .A. § 1915(a). Here, Petitioner seeks to appeal this Court’s dismissal
of his 28 U.S.C. § 2241 petition. In its Order, the Court adopted the Magistrate Judge’s
finding that the petition was moot because Petitioner is no longer in custody. Now,
Petitioner has merely filed a request to appeal in forma pauperis without claiming any
entitlement to redress or stating the issues he intends to present on appeal. Therefore,
the Court finds that the appeal is frivolous and not taken in good faith. Petitioner’s
Motion for Leave to Appeal in forma pauperis [Doc. 27] is DENIED.
SO ORDERED, this 20th day of April, 2012.
AES
S/ C. Ashley Royal
C. ASHLEY ROYAL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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