OLNEY v. WALL

2005 | Cited 0 times | D. Rhode Island | January 11, 2005

MEMORANDUM AND ORDER GRANTING MOTION FOR PRODUCTION OF TRANSCRIPTS AT GOVERNMENT EXPENSE AND DENYING MOTION FOR CERTIFICATE OF APPEALABILITY

Leroy Olney filed a § 2254 petition to vacate his state courtsentence for murder and robbery. After a hearing, a magistratejudge recommended denial of the petition and this Court acceptedthat recommendation.

On March 10, 2004, Olney filed a Notice of Appeal and, on March26, 2004, he filed a Motion for Leave to Appeal In FormaPauperis. On April 2, 2004, the Court of Appeals entered an ordergranting the motion to appeal in forma pauperis.

This Court, being unaware of the April 2 order, denied Olney'sMotion for Leave to Appeal In Forma Pauperis on April 15, 2004.That motion was denied for two reasons. First, this Court found that Olney had "not made a substantialshowing of the denial of a constitutional right," which is aprerequisite for appealing from the denial of a § 2254 petition.28 U.S.C. 2253(c)(1). This Court reasoned that, since Olney wasnot entitled to appeal at all, he was not entitled to appeal informa pauperis.

In addition, this Court noted that Olney had failed to file anyinformation regarding his prison trust account as required by28 U.S.C. § 1915(a)(2); and, therefore, no determination could bemade regarding his ability to pay the cost of an appeal.

On May 11, 2004, Olney filed a motion for production oftranscripts of a September 9, 2003 telephone conference with themagistrate judge and the hearing on his § 2254 motion before themagistrate judge. On May 25, 2004, this Court denied that motionwithout prejudice to renewal if Olney was successful on anyappeal from the denial of his previous motions.

Olney, now, has filed a second motion for production of thetranscripts as well as a motion for a certificate ofappealability from the denial of his § 2255 petition.

Since this Court previously found that Olney had failed to makea "substantial showing of the denial of a constitutional right,"his motion for a certificate of appealability is denied.Nevertheless, as incongruous as it may be, since the Court ofAppeals granted Olney's motion to appeal in forma pauperis, his Motion for Production of Transcripts at Government Expense isgranted.

IT IS SO ORDERED,

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