The opinion of the court was delivered by: Murphy, District Judge
On June 12, 2009, this Court denied Brunkhorst's petition for writ of habeas corpus and entered judgment dismissing this action (see Docs. 19, 20). Brunkhorst now seeks leave to proceed in forma pauperis on appeal, a certificate of appealability, and appointed counsel on appeal.
Pursuant to 28 U.S.C. § 2253, "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court...." 28 U.S.C. § 2253(c)(1). Rule 22 of the Federal Rules of Appellate Procedure provides, in pertinent part:
[I]n a habeas corpus proceeding in which the detention complained of arises from process issued by a state court... the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c). If an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue. The district clerk must send the certificate or statement to the court of appeals with the notice of appeal and the file of the district-court proceedings. If the district judge has denied the certificate, the applicant may request a circuit judge to issue the certificate.
Fed. R. App. P. 22(b)(1).
"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). See also Young v. United States, 124 F.3d 794, 798-99 (7th Cir. 1997); Nunez v. United States, 96 F.3d 990, 991-92 (7th Cir. 1996). A substantial showing of the denial of a constitutional right for purposes of the statute means that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Dalton v. Battaglia, 402 F.3d 729, 738 (7th Cir. 2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). Cf. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983); Rodriguez v. United States, 286 F.3d 972, 978 (7th Cir. 2002); Ouska v. Cahill-Masching, 246 F.3d 1036, 1046 (7th Cir. 2001); Rutledge v. United States, 230 F.3d 1041, 1047 (7th Cir. 2000).
For the reasons set forth in the Court's June 12, 2009, Memorandum and Order (see Doc. 19), Brunkhorst has not made a substantial showing of the denial of a constitutional right. Accordingly, the motion for a certificate of appealability (Doc. 24) is DENIED.
Although the Court has denied Brunkhorst's request for issuance of a certificate of appealability, the Court cannot find that the instant appeal is not taken in good faith. See 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3). Brunkhorst is indigent, and, because this is a habeas corpus action under 28 U.S.C. § 2254, the filing fee provisions of 28 U.S.C. § 1915(b) do not apply. See Walker v. O'Brien, 216 F.3d 626, 628-29 (7th Cir. 2000). The motion to proceed on appeal in forma pauperis (Doc. 23) is GRANTED. Brunkhorst may proceed on appeal without prepayment of fees and costs.
Finally, Brunkhorst ably represented himself in the district court proceedings without counsel. He now makes a bare allegation that he has "written to and tried to contact attorneys to represent me to no avail," (see Doc. 25), but the Court is not privy to the details of those contacts. His request is DENIED without prejudice to refiling it in the Court of Appeals.
The Clerk of Court is DIRECTED to mail a copy of this Order to the United States Court of Appeals for the Seventh Circuit; Brunkhorst may renew his request for a certificate of appealability and appointed counsel in the Court of Appeals.
G. Patrick Murphy United States District Judge
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