The opinion of the court was delivered by: Richard G. Kopf Senior United States District Judge
This matter is before the court on Defendant's notice of appeal (filing 94) and on the recent memo from the clerk's office inquiring whether Defendant may proceed in forma pauperis on appeal (filing 95). In response to the Clerk's inquiry, the court finds that the appeal is not taken in good faith. Thus, Defendant may not proceed in forma pauperis on appeal. See Fed. R. App. P. 24(a)(3).
Defendant pleaded guilty to possession of cocaine with intent to distribute and I sentenced him to 60 months in prison on October 19, 2011. (Filing 63.) Defendant waived his right to appeal and waived his right to file a § 2255 motion with the exception that he was permitted to seek post-conviction relief based upon ineffective assistance of counsel.*fn1 (Filing 49 at CM/EF pp. 6-7.)
On February 16, 2012, Defendant filed a motion to vacate under 28 U.S.C. § 2255. (Filing 73.) I denied the motion and Defendant filed a motion for certificate of appealability along with a notice of appeal. (Filings 78, 79, 81, and 82.) I declined to issue a certificate of appealability, but granted Defendant leave to proceed in forma pauperis on appeal. (Filing 85 at CM/ECF p. 2.) On July 27, 2012, the Eighth Circuit denied Defendant's application for certificate of appealability and dismissed his appeal. (Filing 88.)
On January 29, 2013, Defendant filed a motion pursuant to Federal Rule of Civil Procedure 60(b), seeking to reopen his § 2255 proceeding. (Filing 92.) I denied the motion (filing 93) and Defendant filed his pending notice of appeal (filing 94). Defendant's Rule 60(b) motion essentially argues that an issue he raised in his motion for certificate of appealability constitutes an extraordinary circumstance sufficient to reopen his § 2255 proceeding. This argument is nothing more than an argument previously raised and considered by this court and the Eighth Circuit.
1. Pursuant to Fed. R. App. P. 24(a)(3)(A), the court certifies that Defendant's appeal (filing 94) is not taken in good faith.
2. Pursuant to Fed. R. App. P. 24(a)(4)(B), the clerk of the court shall send a copy of this memorandum and order to Defendant and to the Clerk of the United States Court of Appeals for the Eighth Circuit.
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