In Re: Albert Charles Burgess, Jr., Petitioner, 960 F.2d 145 (4th Cir. 1992)

Albert Charles Burgess filed this petition for a writ of mandamus claiming that the district court did not grant or deny a certificate of probable cause when the court denied his 28 U.S.C.s 2254 (1988) petition, and that he consequently lost his right to appeal.^*  He seeks an order directing the district court to grant or deny a certificate of probable cause and make findings of fact so that he may properly appeal. We deny the petition.

In a habeas case, the district court's order may be appealed only if the district court judge or a circuit court judge issues a certificate of probable cause to appeal. 28 U.S.C. § 2253 (1988); Fed. R. App. P. 22(b). However, the district court is not required to grant or deny a certificate of probable cause in the absence of a motion to do so; in that case, the notice of appeal is considered to contain a request for a certificate of probable cause to appeal directed to the judges of the circuit court. Burgess has no clear right to have the district court grant or deny a certificate of probable cause; therefore, we deny the mandamus petition. In re First Fed. Sav. & Loan Ass'n, 860 F.2d 135, 138 (4th Cir. 1988).

Although we grant leave to proceed in forma pauperis, we dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not significantly aid the decisional process.

PETITION DENIED