Boone v. Price (INMATE 3)

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

DAUOD BOONE, AIS # 276751, ) ) Petitioner, ) ) v. ) CIVIL ACT. NO.2:15-cv-556-ECM ) (WO) CHERYL PRICE, et al., ) ) Respondents. )

O R D E R Now pending before the Court is Petitioner Daoud Boone’s pro se notice of appeal (doc. 42) which the Court construes as containing a motion for a certificate of appealability and a motion to appeal in forma pauperis. The motions are due to be denied. A certificate of appealability is necessary before a petitioner may pursue an appeal in a habeas corpus proceeding. See 28 U.S.C. § 2253(c). To mandate the issuance of a certificate of appealability, a petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1983). Further, “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). In making this determination as to good faith, the Court must use an objective standard, such as whether the appeal is “frivolous,” Coppedge v. United States, 369 U.S. 438, 445 (1962), or “has no substantive merit,” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 1981) (per curiam). Applying these standards, the Court finds that Boone has not made a substantial showing of the denial of a constitutional right. In addition, the Court is of the opinion that Boone’s appeal has no legal or factual basis and, accordingly, is frivolous and not taken in good faith. See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam).

Accordingly, it is ORDERED that Boone’s motion for leave to appeal in forma pauperis and motion for a certificate of appealability (doc. 42) are DENIED. Done this 8th day of November, 2021.

/s/ Emily C. Marks EMILY C. MARKS CHIEF UNITED STATES DISTRICT JUDGE