Whitehorse v. USA

Filing 11

MEMORANDUM DECISION AND ORDER granting 9 Motion for Leave to Appeal in forma pauperis; denying 10 Motion for Certificate of Appealability. Signed by Judge Ted Stewart on 8/28/09. (jwt)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

LUVEN WHITEHORSE, Petitioner, MEMORANDUM DECISION AND ORDER DENYING PETITIONER'S MOTION FOR CERTIFICATE OF APPEALABILITY AND GRANTING PETITIONER'S MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

vs.

UNITED STATES OF AMERICA, Respondent.

Case No. 2:09-CV-273 TS

This matter is before the Court on Petitioner's Motion for Certificate of Appealability and Petitoner's Motion for Leave to Appeal in forma pauperis. An appeal from a final order in a proceeding under 28 U.S.C. § 2255 may not be taken unless a judge or circuit justice issues a certificate of appealability.1 A COA may issue only "if the applicant has made a substantial showing of the denial of a constitutional right."2 "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the

1

28 U.S.C. § 2253(c)(1). Id. § 2253(c)(2). 1

2

district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further."3 For substantially the same reasons set out in the Court's prior Orders,4 the Court will deny Petitioner's Motion for Certificate of Appealability. However, the Court will allow Petitioner to proceed in forma pauperis. It is therefore ORDERED that Petitioner's Motion for Certificate of Appealability (Docket No. 10) is DENIED. It is further ORDERED that Petitioner's Motion for Leave to Appeal in forma pauperis is GRANTED. DATED August 28, 2009. BY THE COURT: _____________________________________ TED STEWART United States District Judge

3

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Docket Nos. 3 and 5. 2

4