UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
February 20, 2007
JOHN R. KELLY, PETITIONER,
WILLIAM LAPE, SUPERINTENDENT, MARCY CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Lawrence E. Kahn, U.S. District Judge
Petitioner John R. Kelly ("Petitioner" or "Kelly") filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, with the Court on February 27, 2004. See Petition (Dkt. No. 1). Kelly filed an Amended Petition on November 19, 2004. See Am. Pet. (Dkt. No. 23). On January 3, 2007, a Report-Recommendation was issued by the Honorable David R. Homer, United States Magistrate Judge, which recommended that the Amended Petition be denied. See Report-Rec. (Dkt. No. 38). This Court adopted Judge Homer's Report-Recommendation, and this action was dismissed by Order filed February 1, 2007. See Feb. 2007 Order (Dkt. No. 40). Kelly has appealed from the February 2007 Order. See Notice of App. (Dkt. No. 42). Presently before the Court is an application to proceed in forma pauperis on appeal. See IFP Applic. (Dkt. No. 43).
The Court notes that Kelly has not filed a request for a Certificate of Appealability ("COA") as required by 28 U.S.C. § 2253(c)(1). The Second Circuit has held, however, that a Notice of Appeal may be construed as a motion for a COA. SeeMarmolejo v. United States, 196 F.3d 377, 378 (2d Cir. 1999) (citing Hooper v. United States, 112 F.3d 83, 88 (2d Cir. 1997)). See alsoForbes v. United States, No. 98 Civ. 1878(JAR), 1999 WL 1133362 (S.D.N.Y Dec. 10, 1999) (Court properly construed notice of appeal as COA, and ruled on same). This Court will, therefore, also construe Kelly's Notice of Appeal (Dkt. No. 42) as a request for a COA.
I. Certificate of Appealability
Section 2253 provides, in relevant part:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from --
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
28 U.S.C. § 2253(c)(1). Furthermore, Rule 22 of the Federal Rules of Appellate Procedure provides that an appeal may not proceed "unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)." See FED. R. APP. P. 22(b).
However, a COA may only be issued "if the applicant has made a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2).
After reviewing the relevant portions of the file relating to this action, and for the reasons set forth in the Report-Recommendation filed January 3, 2007, and this Court's February 2007 Order, the Court finds that Kelly has failed to make such a showing herein. Therefore, the Court denies Petitioner's request.
II. In Forma Pauperis Application
Turning to Kelly's in forma pauperis application, because this Court previously granted his in forma pauperis application, see Dkt. No. 4, and has not revoked same, the instant application is denied as moot.*fn1
WHEREFORE, it is hereby
ORDERED, that this Court will construe Kelly's Notice of Appeal (Dkt. No. 42) also as a request for a Certificate of Appealability; and it is further
ORDERED, that Kelly's Application for a Certificate of Appealability (Dkt. No. 42) is DENIED for the reasons set forth above; and it is further
ORDERED, that Kelly's request to proceed with the appeal of this matter in forma pauperis (Dkt. No. 43) is DENIED AS MOOT; and it is further
ORDERED, that the Clerk serve a copy of this Order upon all parties in accordance with the Local Rules.
IT IS SO ORDERED.