Opinion
Case No. 2:05-cv-948.
November 14, 2006
OPINION AND ORDER
On September 6, 2006, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was granted an extension of time until November 6, 2006, within which to file his notice of appeal. See Doc. No. 24. This matter is before the Court on petitioner's October 31, 2006, notice of appeal and financial affidavit, which the Court construes as a request for a certificate of appealability, and request to proceed in forma pauperis on appeal. Doc. No. 25. For the reasons that follow, petitioner's requests are DENIED.
In his § 2254 petition, petitioner asserts:
1. Ineffective assistance of trial counsel and appellate counsel for not raising error during appeal concerning the same errors [sic].
2. Denial of right to a jury trial.
3. Denial of effective assistance of counsel.
4. Denial of right to due process of law and equal protection.
5. Double jeopardy, due process of law.
6. Due process, double jeopardy.
7. Denial of sufficiency of evidence to adjudicate the defendant appellant guilty of corrupt activities — due process.
On September 6, 2006, all of petitioner's claims were dismissed as without merit or procedurally defaulted.
Petitioner did not object to the Magistrate Judge's recommendation of dismissal of claim seven. Thus, he has waived the right to appeal such claim. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
As to the remainder of petitioner's claims, 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). Slack v. McDaniel, 120 S.Ct. 1595 (2000). 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.'" Barefoot, 463 U.S., at 893, and n. 4. . . .Id. 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." 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 either that reasonable jurists could debate whether the Court was correct in its procedural rulings or whether the petition should have been resolved in a different manner. Id.
Petitioner's request for a certificate of appealability therefore is DENIED.
Pursuant to 28 U.S.C. § 1915(a)(3), an appeal may not be taken in forma pauperis if the appeal is not taken in good faith. See also Federal Rule of Appellate Procedure 24(a)(3)(A):
A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless:
(A) the district court — before or after the notice of appeal is filed — certifies that the appeal is not taken in good faith[.]Id.
The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). An appeal is not taken in good faith if the issue presented is frivolous. Id. Accordingly, it would be inconsistent for a district court to determine that a complaint is too frivolous to be served, yet has sufficient merit to support an appeal in forma pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n. 1 (2d Cir. 1983).Frazier v. Hesson, 40 F.Supp.2d 957, 967 (W.D. Tenn. 1999). However,
"the standard governing the issuance of a certificate of appealability is more demanding than the standard for determining whether an appeal is in good faith." U.S. v. Cahill-Masching, 2002 WL 15701, * 3 (N.D.Ill. Jan. 4, 2002). "[T]o determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 631 (7th Cir. 2000).Penny v. Booker, 2006 WL 2008523 (E.D. Michigan, July 17, 2006).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal is not in good faith. Therefore, petitioner's request to proceed in forma pauperis on appeal also is DENIED.
IT IS SO ORDERED.