Whitehorse v. USA, No. 2:2009cv00273 - Document 11 (D. Utah 2009)

Court Description: MEMORANDUM DECISION AND ORDER granting 9 Motion for Leave to Appeal in forma pauperis; denying 10 Motion for Certificate of Appealability. Signed by Judge Ted Stewart on 8/28/09. (jwt)

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IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION LUVEN WHITEHORSE, Petitioner, MEMORANDUM DECISION AND ORDER DENYING PETITIONER S MOTION FOR CERTIFICATE OF APPEALABILITY AND GRANTING PETITIONER S MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS vs. UNITED STATES OF AMERICA, Case No. 2:09-CV-273 TS Respondent. This matter is before the Court on Petitioner s Motion for Certificate of Appealability and Petitoner s Motion for Leave to Appeal in forma pauperis. An appeal from a final order in a proceeding under 28 U.S.C. § 2255 may not be taken unless a judge or circuit justice issues a certificate of appealability.1 A COA may issue only if the applicant has made a substantial showing of the denial of a constitutional right. 2 A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the 1 28 U.S.C. § 2253(c)(1). 2 Id. § 2253(c)(2). 1 district court s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. 3 For substantially the same reasons set out in the Court s prior Orders,4 the Court will deny Petitioner s Motion for Certificate of Appealability. However, the Court will allow Petitioner to proceed in forma pauperis. It is therefore ORDERED that Petitioner s Motion for Certificate of Appealability (Docket No. 10) is DENIED. It is further ORDERED that Petitioner s Motion for Leave to Appeal in forma pauperis is GRANTED. DATED August 28, 2009. BY THE COURT: _____________________________________ TED STEWART United States District Judge 3 Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). 4 Docket Nos. 3 and 5. 2

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