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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 4:90-cr-4051-WS-GRJ

NATHANIEL JAMES,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This Court denied Defendant’s §2255 motion to set aside the

judgment, ECF No. 757, finding that the firearm enhancement under

§2D1.1(b) of the Sentencing Guidelines was not based upon the

Defendant’s arrest or conviction in the Southern District of Florida but was

based upon evidence that Defendant and others possessed and used

firearms during the years of the conspiracy and in furtherance of it. 

Defendant filed a notice of appeal, ECF No. 761, and this case is now

before the Court on Defendant’s motion for leave to appeal in forma

pauperis, which has been referred to the undersigned. Although

Defendant did not use the proper court forms, amendment is not necessary

because Defendant’s appeal is not taken in good faith.
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Pursuant to 28 U.S.C. § 1915(a)(3), “[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.” See also Fed. R. App. P. 24(a). The Court finds that Defendant’s

appeal is not taken in good faith, inasmuch as Defendant has identified no

nonfrivolous issue for appeal. Fed. R. App. P. 24(a)(1) (party seeking leave

to appeal in forma pauperis must file an affidavit claiming entitlement to

redress and stating issues the party intends to present on appeal).

Because the Court has certified that Defendant’s appeal is not taken in

good faith, the motion for leave to appeal in forma pauperis, ECF No. 764,

should be denied.

The Court’s final order, ECF No. 757, did not address the issue of

whether Defendant is entitled to a certificate of appealability. Section 2255

Rule 11(a) provides that “[t]he district court must issue or deny a certificate

of appealability when it enters a final order adverse to the applicant,” and if

a certificate is issued “the court must state the specific issue or issues that

satisfy the showing required by 28 U.S.C. § 2253(c)(2).” “[A] certificate of

appealability is required for the appeal of any denial of ... relief from a

judgment in a [28 U.S.C.] § 2254 or [28 U.S.C.] § 2255 proceeding.” 

Jackson v. Crosby, 437 F.3d 1290, 1294 -1295 (11 Cir. 2006). th

Case No: 4:90-cr-4051-WS-GRJ
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The undersigned finds no substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.

473, 483–84 (2000). Therefore, the Court should include in its order

addressing this report and recommendation, that a certificate of

appealability is denied.

In light of the foregoing, it is respectfully RECOMMENDED that the

motion for leave to appeal in forma pauperis, ecf No. 764, should be

DENIED. Further, the Court should include in its order that a certificate of

appealability is denied.

IN CHAMBERS this 30th day of August 2017.

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be filed

within fourteen (14) days after being served a copy thereof. Any different deadline

that may appear on the electronic docket is for the court’s internal use only, and

does not control. A copy of objections shall be served upon all other parties. If a

party fails to object to the magistrate judge's findings or recommendations as to

any particular claim or issue contained in a report and recommendation, that party

waives the right to challenge on appeal the district court's order based on the

unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. §

636.

Case No.: 4:90cr4051/WS/GRJ