Malone v. USA
Filing
6
OPINION AND ORDER: The court construes Malone's 3 Notice of Appeal challenging the court's 5/25/2011 order denying his 28 US 2255 as a motion for leave to proceed in forma pauperis on appeal and for a certificate of appealability and is DENIED. Signed by Judge Robert L Miller, Jr on 8/22/2011. (cc: Malone, Tavitas, Peilet, Barrett)(rmn)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
COLUMBUS MALONE,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent
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Cause No.: 2:10-CV-457
(arising out of 2:02-CR-44(2)RM)
OPINION AND ORDER
The court construes Columbus Malone’s notice of appeal challenging the
court’s May 25, 2011 order denying his petition under 28 U.S.C. § 2255, as a
motion for leave to proceed in forma pauperis on appeal and for a certificate of
appealability.
Issuance of a certificate of appealability requires the court to find that Mr.
Malone has made “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). This means
he must show “that reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that
the issues presented were ‘adequate to deserve encouragement to proceed
further.’” Miller-El v. Cockrell, 537 U.S. at 336. For the reasons stated in the May
25, 2011 opinion and order denying his habeas petition, Mr. Malone is far from
meeting that burden. Accordingly, the court denies his motion for a certificate of
appealability.
Federal Rule of Appellate Procedure 24(a)(3) provides that a financially
indigent person may be permitted to proceed on appeal in forma pauperis unless
the court “certifies that the appeal is not taken in good faith.” In other words, the
court must decide “that a reasonable person could suppose that the appeal has
some merit.” Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000). Because no
reasonable person could find that Mr. Malone’s appeal has any merit, the court
concludes that his appeal is not taken in good faith, and his request for pauper
status must be denied.
For these reasons, Mr. Malone’s motion for leave to proceed in forma
pauperis on appeal and for a certificate of appealability is DENIED.
SO ORDERED.
ENTERED: August 22, 2011
/s/ Robert L. Miller, Jr.
Judge
United States District Court
cc:
C. Malone
A. Tavitas
D. Peilet
J. Barrett
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