HOLMES v. ROBERTS

HUGH LAWSON, District Judge

Before the Court is petitioner TYRON MARK HOLMES'S notice of appeal (Tab # 24) from the Court's September 26, 2008 order, which adopted Magistrate Judge Claude W. Hicks's recommendation that petitioner's 28 U.S.C. § 2254 motion be denied as untimely.

The Eleventh Circuit Court of Appeals has mandated that the Court construe petitioner's notice of appeal as an application for a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253(c). Edwards v. United States , 114 F.3d 1083 (11th Cir. 1997). Under section 2253(c), a COA may issue only if the applicant has made a substantial showing of the denial of a constitutional right. For the reasons stated in Magistrate Judge Hicks's recommendation and this Court's order accepting the same, the Court finds that petitioner has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Accordingly, the application for a COA is DENIED.

Also before the Court is petitioner's motion for leave to proceed in forma pauperis on appeal (Tab # 26). Said motion is DENIED AS MOOT.

SO ORDERED.