Opinion
Case No. 1:04-cv-634.
October 3, 2006.
DECISION AND ORDER GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS AND DENYING CERTIFICATE OF APPEALABILITY
This habeas corpus case is before the Court on Petitioner's post-judgment Motion for Certificate of Appealability and leave to proceed on appeal in forma pauperis.
The request to proceed in forma pauperis is granted as the Court finds the issues raised in the Motion for Certificate of Appealability are not frivolous.
A person in custody upon a state conviction seeking to appeal an adverse ruling on a petition for writ of habeas corpus in the district court must obtain a certificate of appealability before proceeding. 28 U.S.C. § 2253 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.L. No 104-132, 110 Stat. 1214) (the "AEDPA"), provides in pertinent part:
(c)
(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from —
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
District courts have the power to issue certificates of appealability under the AEDPA in § 2254 cases. Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063 (6th Cir. 1997); Hunter v. United States, 101 F.3d 1565 (11th Cir. 1996) (en banc). Likewise, district courts are to be the initial decisionmakers on certificates of appealability under § 2255. Kincade v. Sparkman, 117 F.3d 949 (6th Cir. 1997) (adopting analysis in Lozada v. United States, 107 F.3d 1011, 1017 (2d Cir. 1997). Issuance of blanket grants or denials of certificates of appealability is error, particularly if done before the petitioner requests a certificate. Porterfield v. Bell, 258 F.3d 484(6th Cir. 2001); Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001).
To obtain a certificate of appealability, a petitioner must show at least that "jurists of reason would find it debatable whether the petition states a valid claim of denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604, 146 L. Ed. 2d 542 (2000). That is, it must find that reasonable jurists would find the district court's assessment of the petitioner's constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). If the district court dismisses the petition on procedural grounds without reaching the constitutional questions, the petitioner must also show that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S. Ct. at 1604. The procedural issue should be decided first so as to avoid unnecessary constitutional rulings. Slack, 529 U.S. at 485, 120 S. Ct. at 1604, citing Ashwander v. TVA, 297 U.S. 288, 347, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring). The first part of this test is equivalent to making a substantial showing of the denial of a constitutional right, including showing that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further, Slack v. McDaniel, 529 U.S. 473 at 484, 120 S. Ct. 1595, 1604, 146 L. Ed. 2d 542 (2000), quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983). The relevant holding in Slack is as follows:
[W]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue (and an appeal of the district court's order may be taken) if 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.529 U.S. 473, 478,120 S. Ct. 1595,1600-1601
The standard is higher than the absence of frivolity required to permit an appeal to proceed in forma pauperis. Id. at 893.
Obviously the petitioner need not show that he should prevail on the merits . . . Rather, he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are `adequate to deserve encouragement to proceed further.'Id. n. 4. Accord, Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 1039-1040, 154 L.Ed.2d 931 (2003). A certificate of appealability is not to be issued pro forma or as a matter of course. Id. at 1040. Rather, the district and appellate courts must differentiate between those appeals deserving attention and those which plainly do not. Id. A blanket certificate of appealability for all claims is improper, even in a capital case. Frazier v. Huffman, 348 F.3d 174 (6th Cir. 2003), citing Porterfield v. Bell, 258 F.3d 484 (6th Cir. 2001).
From the Motion, it appears Petitioner intends to appeal this Court's decision on his third Ground for Relief which reads:
Ground Three: Prosecutorial Misconduct; committed prejudicial misconduct during argument to jury.
Supporting Facts: During closing remarks prosecutor lead [sic] jury to believe Cornell Allen who confessed to the crime did not exist, made comments that defense witnesses were lying, characterized Petitioner [as] "big time drug dealer," inject[ed] bad acts not involved with this case, failed to pursue justice for all concerned, made statements unsupported by evidence, allued [sic] to large sums of money could be used to influence witnesses.
(Petition, Doc. No. 1, at 4-5).
Respondent raised the defense of procedural default on this claim and the Court upheld that defense. Essentially, the Court of Appeals reviewed the claim of prosecutorial misconduct for plain error, having first found that Petitioner procedurally defaulted by failing to make a contemporaneous objection to the prosecutor's remarks. The Court cited, both in its original Decision (Doc. No. 25) and in its Decision on Reconsideration (Doc. No. 28), those Sixth Circuit cases holding that plain error review in the Ohio courts is an enforcement, and not a waiver, of procedural default. See Hinkle v. Randle, 271 F. 3rd 239 (6th Cir. 2001), citing Seymour v. Walker, 224 F. 3rd 542, 557 (6th Cir. 2000) (plain error review does not constitute a waiver of procedural default); accord, Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003).
Petitioner does not cite any case law to the contrary, either from the Sixth Circuit or from other circuit courts considering similar questions. The Sixth Circuit authority is recent. Thus while the conclusions may be debatable in the sense that persons so inclined can always find something to criticize in decided cases, the binding effect of those decisions on this Court is not reasonably debatable.
Therefore the Motion for Certificate of Appealability is denied. The Clerk shall transmit a copy of this Decision to the Court of Appeals.