Opinion
Case No. 1:12-cv-542
01-09-2014
JAMES BOHANNON, Petitioner, v. WARDEN, Allen/Oakwood Correctional Institution, Respondent.
Chief Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
CLARIFICATION OF APPEAL STATUS
This habeas corpus case is before the Court on Petitioner's Motion to Set Aside Order in Report and Recommendations Filed 12/20/2013 (the "Third R&R," Doc. No. 39).
On November 8, 2013, Chief Judge adopted the Magistrate Judge's Report and Recommendations on the merits (the "First R&R," Doc. No. 26). In her Order, she denied Petitioner a certificate of appealability which is required for a habeas petitioner to appeal. (Order, Doc. No. 27). She also certified to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. This was a final appealable judgment on the merits of Petitioner's habeas corpus petition. As such it was required to include a ruling on both the certificate of appealability and the question of appeal in forma pauperis.
On November 18, 2013, Petitioner filed a Motion to Reconsider (Doc. No. 30) and later filed untimely Objections to the First R&R (Doc. No. 31). The Magistrate Judge recommended that the Motion to Reconsider be denied (the "Second R&R," Doc. No. 32). Objections to the Second R&R are due to be filed by January 16, 2014.
Petitioner's time to object to the First R&R expired November 1, 2013, seventeen days after the First R&R was filed and served on Petitioner. Petitioner's Certificate of Service purports to show deposit in the institutional mail on November 15, 2013 (Doc. No. 31, PageID 1888).
On December 19, 2013, Petitioner filed a timely Notice of Appeal (Doc. No. 33) and a Motion for Leave to Appeal in forma pauperis (Doc. No. 34). In the Third R&R, the Magistrate Judge recommended denying this Motion because Chief Judge Dlott had already determined to certify that the appeal should not be permitted to proceed in forma pauperis in her final Order. Because Petitioner had filed a Notice of Appeal after Chief Judge Dlott had already determined that any appeal would be objectively frivolous, he was and is liable to pay the appellate filing fee unless the court of appeals grants him leave to appeal in forma pauperis. Of course, Chief Judge Dlott could, in her discretion, strike the Deficiency Order portion of the Third R&R, but Petitioner will still not be able to appeal in forma pauperis without permission from the court of appeals.
Petitioner makes the point in his Motion that "he is indigent and unable to afford the costs involved in an appeal." (Doc. No. 39, PageID 1918.) The Court does not doubt that Petitioner is indigent, but that does not mean he is entitled to appeal. The Sixth Circuit Court of Appeals requires that all district courts in the Circuit determine, in all cases where the appellant seeks to proceed in forma pauperis, whether the appeal is frivolous. Floyd v. United States Postal Service, 105 F.3d 274 (6th Cir. 1997).
28 U.S.C. § 1915(a)(3) provides that "[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." The test under § 1915(a) for whether an appeal is taken in good faith is whether the litigant seeks appellate review of any issue not frivolous. Coppedge v. United States, 369 U.S. 438 (1962). Thus an appellant's good faith subjective motivation for appealing is not relevant, but rather whether, objectively speaking, there is any non-frivolous issue to be litigated on appeal. Chief Judge Dlott has already determined that any appeal in this case would not be taken in good faith (Order, Doc. No. 27).
Petitioner notes that the Second R&R does not address his request for a certificate of appealability (Motion, Doc. No. 39, PageID 1918). That is because a certificate of appealability was already rejected by Chief Judge Dlott (Order, Doc. No. 27) and the Magistrate Judge concluded in the Second R&R that that decision should not be changed.
Michael R. Merz
United States Magistrate Judge