Wimberly v. Powell

Filing 40

ORDER denying as moot 33 Motion for Leave to Proceed in forma pauperis and denying application for Certificate of Appealability . Ordered by Judge Hugh Lawson on 1/25/2007. (nbp,HL)

Wimberly v. Powell

Doc. 40

Case 6:05-cv-00031-HL

Document 40

Filed 01/25/2007

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA THOMASVILLE DIVISION HENRY JAMES WIMBERLY, : : Petitioner : : VS. : : CARLTON POWELL, : : Respondent : : __________________________________

NO.: 6:05-CV-31 (HL)

ORDER Before the Court is petitioner HENRY JAMES WIMBERLY'S notice of appeal1 and motion for certificate of appealability ("COA") from the Court's July 6, 2006 Order, which found petitioner's habeas corpus petition, along with all other outstanding motions, moot. 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 the July 6, 2006

It appears petitioner's notice of appeal is untimely. The Court's Order that found the habeas corpus petition, and all other outstanding motions, moot was entered on July 6, 2006. Pursuant to Fed. R. App. P. 4 (a), petitioner had thirty (30) days from this date to file his notice of appeal. Petitioner's notice of appeal was not filed until November 14, 2006.

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Dockets.Justia.com

Case 6:05-cv-00031-HL

Document 40

Filed 01/25/2007

Page 2 of 2

Order, 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. Said motion is DENIED AS MOOT. SO ORDERED, this 25th day of January, 2007.

s/

HUGH LAWSON, JUDGE

Hugh Lawson