Horton v. Hood (INMATE 3)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

ZYRELL HORTON, # 253522, ) )

Petitioner, ) ) v. ) Civil Action No. ) 3:18-cv-886-WHA-CSC

PATRICIA HOOD, et al., ) (WO) )

Respondents. )

ORDER

Petitioner Zyrell Horton has filed a notice of appeal, which the Court construes to contain a motion for a certificate of appealability and a motion for leave to appeal in forma pauperis. (Doc. 39.) These motions are due to be denied.

A certificate of appealability is necessary before a petitioner may pursue an appeal in a habeas corpus proceeding. See 28 U.S.C. § 2253(c). To mandate the issuance of a certificate of appealability, a petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1983). Further, “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). In making this determination as to good faith, the Court must use an objective standard, such as whether the appeal is “frivolous,” Coppedge v. United States, 369 U.S. 438, 445 (1962), or “has no substantive merit,” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 1981) (per curiam).

Applying these standards, the Court finds that Horton has not made a substantial showing of the denial of a constitutional right. In addition, the Court is of the opinion that Horton’s appeal has no legal or factual basis and, accordingly, is frivolous and not taken in good faith. See Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam). Accordingly, it is

ORDERED that Horton’s motion for a certificate of appealability and motion for leave to appeal in forma pauperis (Doc. 39) are DENIED.

DONE this 1st day of November, 2021.

/s/ W. Harold Albritton

W. HAROLD ALBRITTON

SENIOR UNITED STATE DISTRICT JUDGE