Ware v. United States of America (INMATE 3)

M.D. Alabama

Ware v. United States of America (INMATE 3)

District Court, M.D. Alabama·Decided December 22, 2022·No. 2:20-cv-00326·Unknown

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION TWAYNE LEBARSHA WARE, ) ) Petitioner, ) ) v. ) CASE NO. 2:20-CV-326-WKW ) [WO] UNITED STATES OF AMERICA, ) ) Respondent. )

ORDER Petitioner has filed a notice of appeal (Doc. # 17), appealing the November 29, 2022 final judgment dismissing his 28 U.S.C. § 2255 motion. The notice of appeal is construed as containing a motion for a certificate of appealability and a motion for leave to appeal in forma pauperis. 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). Under this standard, Petitioner has failed to make a substantial showing of the denial of a constitutional right. Accordingly, it is ORDERED that Petitioner’s motion for a certificate of appealability (Doc. # 17) is DENIED. Additionally, “[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). In making

that determination, the court uses 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). For the reasons set out in the Recommendation of the Magistrate Judge (Doc. # 12), which was adopted as the final order (Doc. # 14), the court finds that Petitioner’s appeal is without a 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 Petitioner’s motion for leave to appeal in forma pauperis (Doc. # 17) is DENIED.

DONE this 22nd day of December, 2022. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION TWAYNE LEBARSHA WARE, ) ) Petitioner, ) ) v. ) CASE NO. 2:20-CV-326-WKW ) [WO] UNITED STATES OF AMERICA, ) ) Respondent. )

ORDER Petitioner has filed a notice of appeal (Doc. # 17), appealing the November 29, 2022 final judgment dismissing his 28 U.S.C. § 2255 motion. The notice of appeal is construed as containing a motion for a certificate of appealability and a motion for leave to appeal in forma pauperis. 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). Under this standard, Petitioner has failed to make a substantial showing of the denial of a constitutional right. Accordingly, it is ORDERED that Petitioner’s motion for a certificate of appealability (Doc. # 17) is DENIED. Additionally, “[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). In making

that determination, the court uses 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). For the reasons set out in the Recommendation of the Magistrate Judge (Doc. # 12), which was adopted as the final order (Doc. # 14), the court finds that Petitioner’s appeal is without a 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 Petitioner’s motion for leave to appeal in forma pauperis (Doc. # 17) is DENIED.

DONE this 22nd day of December, 2022. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

Ware v. United States of America (INMATE 3), (M.D. Ala. 2022).

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