Cantu v. USA

Filing 14

OPINION AND ORDER denying 11 Motion for Certificate of Appealability and DENYING leave to proceed in forma pauperis on appeal. Signed by Judge Robert L Miller, Jr on 12/18/12. (smp)(cc: Cantu)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

ANTONIO CANTU,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent

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CAUSE NO. 3:12-CV-181 RM
(Arising out of 3:11-CR-40 RM)

OPINION and ORDER
In June 2011, Antonio Cantu pleaded guilty to committing bank robbery by
force or violence in violation of 18 U.S.C. § 2113(a). Mr. Cantu filed a petition
pursuant to 28 U.S.C. § 2255 in April 2012, which the court denied based on Mr.
Cantu’s waiver in his plea agreement of his right to appeal or file a § 2255 petition
and because, had he not waived his right to file a § 2255 petition, his claims were
without merit. Mr. Cantu filed a motion for reconsideration, which the court
denied in November 2012. Mr. Cantu is now before the court having filed a notice
of appeal and a request that a certificate of appealability be issued. Although Mr.
Cantu hasn’t filed a motion to proceed in forma pauperis on his appeal, the court
will view his motion as including that request, as well.
Issuance of a certificate of appealability requires the court to find that Mr.
Cantu has made “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). He hasn’t done so. Mr. Cantu didn’t establish that his guilty
plea or the waiver provision in the plea agreement were anything but informed and
voluntary. His request for a certificate of appealability will be denied.
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. Cantu’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.
Based on the foregoing, the court DENIES Mr. Cantu’s motion for a
certificate of appealability and for leave to proceed in forma pauperis on appeal
[docket # 63].
SO ORDERED.
ENTERED:

December 18, 2012

/s/ Robert L. Miller, Jr.
Judge, United States District Court
cc:

A. Cantu
AUSA Schmid

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