RICHARD KOPF, District Judge
This matter is before the court on the defendant's notice of appeal (filing 85) from the court's order entered on August 28, 2007, (filing 84) denying the defendant's Rule 60(b) motion (filing 83) for relief from the court's judgment entered on February 14, 2007, (filing 67) denying the defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (filing 65).
Before the defendant's appeal can proceed, a certificate of appealability must issue. See Fed.R.App.P. 22(b); United States v. Lambros, 404 F.3d 1034 (8th Cir. 2005) (a certificate of appealability is required to appeal the denial of a Rule 60(b) motion in a § 2255 proceeding). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a district court has rejected a constitutional claim on the merits in the course of denying a § 2255 motion, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong" in order to meet the standard contained in § 2253(c). Slack v. McDaniel, 529 U.S. 473, 484 (2000). In contrast, when a district court denies a § 2255 motion on procedural grounds without reaching the applicant's underlying constitutional claims on the merits, a certificate of appealability should issue under § 2253(c) when "the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
For the various reasons set forth in the court's previous memorandum and order (filing 66), the court concludes that the defendant has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c). Even though a certificate of appealability shall not issue, the appeal does appear to be taken in good faith, such that the defendant may continue to proceed in forma pauperis pursuant to Fed.R.App.P. 24(a)(3).
Accordingly,
IT IS ORDERED:
1. That a certificate of appealability shall
not issue in this case;
2. That the defendant may proceed in forma pauperis on appeal; and
3. The Clerk of Court shall transmit a copy of this memorandum and order to the United States Court of Appeals for the Eighth Circuit.