Moore v. Schuetzle

Filing 50

Certificate of Appealability Denied re 47 Notice of Appeal by Senior Judge Patrick A. Conmy (MM) Distributed on 11/21/2008 to Moore and USCA8 (ks).

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA SOUTHWESTERN DIVISION ) ) Petitioner, ) ) ORDER DENYING CERTIFICATE vs. ) OF APPEALABILITY ) Timothy Schuetzle, Warden ) North Dakota State Penitentiary, ) Case No. 1:08-cv-72 ) Respondent. ) ______________________________________________________________________________ On October 29, 2008, the Court issued an order denying Moore's 28 U.S.C. § 2254 petition. Moore filed notice of appeal on November 4, 2008. The Eighth Circuit Court of Appeals remanded the matter to this Court for consideration of a certificate of appealability in the first instance. Accordingly : 1. The Court certifies that an appeal from the denial of this motion may not be taken in forma pauperis because such a appeal would be frivolous and cannot be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Upon the entire record before the Court, dismissal of the motion is not debatable, reasonably subject to a different outcome on appeal, or otherwise deserving of further proceedings. Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983). Therefore, a certificate of appealability will not be issued by this Court. If the Petitioner desires further review of his motion he may request issuance of a certificate of appealability by a circuit judge of the Court of Appeals for the Eighth Circuit in accordance with Tiedeman v. Benson, 122 F.3d 518, 520-22 (8th Cir. 1997). Anthony Moore,

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IT IS SO ORDERED. Dated this 21st day of November, 2008. /s/ Patrick A. Conmy Patrick A. Conmy, Senior District Judge United States District Court