Opinion
CASE NO. 2:08-CV-1018.
November 16, 2010
OPINION AND ORDER
On September 21, 2010, the Court entered final judgment dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter now is before the Court on Petitioner's request for a certificate of appealability, and his request to proceed in forma pauperis on appeal. (Docs. # 19, 21.) For the reasons that follow, the Court GRANTS Petitioner's request to proceed in forma pauperis on appeal and GRANTS in part and DENIES in part his request for a certificate of appealability.
Petitioner indicates in his notice of appeal that he is appealing this Court's September 8, 2010 final judgment of dismissal of his § 2254 petition. This Court, however, on September 21, 2010, vacated that Order for consideration of Petitioner's objections. (Doc. # 17.) Therefore, the Court construes Petitioner filing as a Notice of Appeal as to the Court's September 21, 2010 final judgment of dismissal.
Petitioner raised the following three claims in his petition for writ of habeas corpus: denial of counsel and a fair trial due to the trial court's failure to inquire adequately into his dissatisfaction of counsel and request to retain new counsel on the eve of trial (claims one and two), and that his sentence violated due process (claim three). On September 15, 2010, the Court dismissed claims one and two on the merits and claim three as procedurally defaulted.
When a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). To make a substantial showing of the denial of a constitutional right, a petitioner must show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S. at 893 n. 4).
Where the Court dismisses a claim on procedural grounds, a certificate of appealability "should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." Id. at 485. The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id.
Upon review of the record, the Court concludes that Petitioner has failed to establish that reasonable jurists would debate whether the Court properly dismissed claim three as procedurally defaulted or whether this claim states a valid claim of the denial of a constitutional right. The Court therefore DENIES Petitioner's request for a certificate of appealability on claim three.
The Court concludes that reasonable jurists could debate whether claims one and two should have been resolved differently, and as previously indicated (see Doc. # 17), GRANTS Petitioner's request for a certificate of appealability on claims one and two. The Court certifies the following issue for appeal:
Was petitioner denied the right to counsel or due process because the trial court refused to grant him a continuance so he could retain new counsel or adequately inquire into his dissatisfaction with counsel on the eve of trial?
The Court must also address Petitioner's request to proceed in forma pauperis on appeal. Because the filing fee assessment procedures prescribed by the Prison Litigation Reform Act are not applicable to appeals taken in habeas corpus matters, see Kincade v. Sparkman, 117 F.3d 949 (6th Cir. 1997), the issue is simply whether Petitioner can afford the $455.00 filing fee for an appeal. Upon review of his financial affidavit, the Court concludes that he cannot. The Court GRANTS Petitioner's request for leave to proceed in forma pauperis on appeal.