Opinion
No. 3:02-CV-2145-G
January 8, 2003
CERTIFICATE AS TO APPEALABILITY
On December 24, 2002, petitioner filed a Notice of Appeal and Certificate of Appealability. On January 3, 2003, he filed a Declaration in Support of Request to Proceed In Forma Pauperis. By Order of Reference dated December 26, 2002, the Court referred petitioner's motion for certificate of appealability to the undersigned United States Magistrate Judge. Pursuant to Federal Rule of Appellate Procedure 22(b) and 28 U.S.C. § 2253 (c), the undersigned Magistrate Judge finds and recommends as follows:
IFP STATUS: The Court should DENY petitioner leave to proceed in forma pauperis. Pursuant to 28 U.S.C. § 1915(a)(3) and Fed.R.App.P. 24(a)(3), the Court should certify that the appeal is not taken in good faith. The petition for writ of mandamus was dismissed as patently frivolous. The appeal likewise presents no legal points of arguable merit and is therefore frivolous. Although this appeal should be certified as not taken in good faith, petitioner may challenge this finding pursuant to Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997) by filing a separate motion to proceed in forma pauperis on appeal with the Clerk of Court, U.S. Court of Appeals for the Fifth Circuit, within thirty days.
COA: The Court should DENY the request for a Certificate of Appealability as unnecessary. Such a certificate is only necessary when there has been a final order in a proceeding under 28 U.S.C. § 2254 or § 2255. See 28 U.S.C. § 2253. Petitioner has proceeded under neither § 2254 nor § 2255. Instead, he filed a petition for writ of mandamus. Consequently, there has been no final order in a § 2254 or § 2255 proceeding. Furthermore, the Court may only issue a certificate of appealability upon a substantial showing of the denial of a constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); 28 U.S.C. § 2253 (c)(2). Petitioner has made no such showing.
ORDER OF THE COURT ON THE FOREGOING RECOMMENDATION
Considering the record in this case and the above recommendation, and pursuant to the Federal Rules of Appellate Procedure and 28 U.S.C. § 2253(c), the Court hereby finds and orders:
IFP STATUS: The Court DENIES petitioner leave to proceed in forma pauperis. Pursuant to 28 U.S.C. § 1915(a)(3) and Fed.R.App.P. 24(a)(3), the Court certifies that the appeal is not taken in good faith. The petition for writ of mandamus was dismissed as patently frivolous. The appeal likewise presents no legal points of arguable merit and is therefore frivolous. Although this appeal is certified as not taken in good faith, petitioner may challenge this finding pursuant to Bough v. Taylor, 117 F.3d 197 (5th Cir. 1997) by filing a separate motion to proceed in forma pauperis on appeal with the Clerk of Court, U.S. Court of Appeals for the Fifth Circuit, within thirty days of the date of this Order. COA: The Court also DENIES the request for a Certificate of Appealability as unnecessary. Such a certificate is only necessary when there has been a final order in a proceeding under 28 U.S.C. § 2254 or § 2255. See 28 U.S.C. § 2253. Petitioner has proceeded under neither § 2254 nor § 2255. Instead, he filed a petition for writ of mandamus. Consequently, there has been no final order in a § 2254 or § 2255 proceeding. Furthermore, the Court may only issue a certificate of appealability upon a substantial showing of the denial of a constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); 28 U.S.C. § 2253(c)(2). Petitioner has made no such showing.
When a writ of mandamus is filed by a prisoner seeking to proceed in forma pauperis, "the nature of the underlying action" will determine the applicability of the Prison Litigation Reform Act (PLRA). In re Crittenden, 143 F.3d 919, 920 (5th Cir. 1998). In this instance, the underlying action sounds in habeas. Accordingly, the petitioner in this cause is not subject to the filing fee provisions of the PLRA. See Sonnier v. Johnson, 161 F.3d 941, 943 (5th Cir. 1998) (holding that the PLRA does not apply to habeas corpus actions).