Vargas v. United States

216 F. Supp. 2d 344, 2002 U.S. Dist. LEXIS 15831, 2002 WL 1968378

Opinion

DECISION AND ORDER

MARRERO, District Judge.

Petitioner Nelson Vargas, (“Vargas”), pro se, by letter and supporting declaration dated August 13, 2002, requests leave to proceed in forma pauperis to appeal to the Court of Appeals for the Second Circuit the August 6, 2002 Order of this Court denying Vargas’s motion pursuant to Fed. R.Civ.P. 59(e) for (1) reconsideration of the Court’s June 27, 2002 Decision and Order rejecting his petition pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence; or (2) alternatively for a Certificate of Appealability.

The Court grants Vargas’s request to proceed to appeal in forma pauperis. In addition, upon further reflection, the Court grants reconsideration insofar as Vargas requests a Certificate of Appealability. Given that the Court noted in its June 27, 2002 Decision and Order that the Second Circuit had not yet ruled on whether or not Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), must be given retroactive application, that the Supreme Court has not definitively ruled on the matter, and that in fact that precise issue may be pending consideration by the Circuit Court in Parise v. United States, No. 01-1198, the Court is now persuaded that Vargas’s appeal, despite substantial and uniform contrary precedent from other circuit and district courts which have considered the issue, would be taken in good faith. See 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

Accordingly, for the reasons set forth above, it is hereby

ORDERED that petitioner Vargas’s request for leave to proceed in forma pau-peris to appeal this Court’s Orders of June 27, 2002 and August 6, 2002 is GRANTED; and it is hereby

ORDERED that Vargas’s request for reconsideration of the Court’s denial of a Certificate of Appealability is GRANTED and that the Court’s Orders of June 27, 2002 and August 6, 2002 are reaffirmed in all other respects.

SO ORDERED.