Opinion
CASE NO. 2:13-CV-01179
02-02-2015
SCOTT POWERS, Petitioner, v. WARDEN, LONDON CORRECTIONAL INSTITUTION, Respondent
MAGISTRATE JUDGE KEMP
OPINION AND ORDER
On January 2, 2015, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF 17. This matter now is before the Court on Petitioner's January 28, 2015, Notice of Appeal, Motion for a Certificate of Appealability and Motion for Leave to Appeal in forma pauperis. ECF 18, 19, 20. Petitioner seeks a certificate of appealability solely on the issue of whether the Court erred in determining that the trial court imposed consecutive terms of incarceration where the record establishes to the contrary. Motion for a Certificate of Appealability, ECF 19, PageID# 391. The Court denied this claim on the merits. Opinion and Order, ECF 16.
Where 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, 529 U.S. 473, 484 (2000). To make a substantial showing of the denial of a constitutional right, a petitioner must show "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.' " Id. (citing Barefoot, 463 U.S ., at 893, and n. 4).
This Court is not persuaded that Petitioner meets this standard here. Petitioner's claim involves a question of state law regarding whether his parole revocation violations were to run consecutively with his other sentences under Ohio law. This state law claim fails to provide a basis for federal habeas corpus relief. Petitioner's Motion for Certificate of Appealability, ECF 19, therefore is DENIED.
Petitioner also seeks to proceed in forma pauperis on appeal. Under Rule 24(a)(3) of the Federal Rules of Appellate Procedure, a party who was permitted to proceed in forma pauperis in the district court may proceed on appeal in forma pauperis unless the Court certifies that the appeal is not taken in good faith. See also 28 U.S.C.1915(a)(3). As this Court previously has explained,
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, 1050 n. 1 (2d Cir. 1983).
Jordan v. Sheets, No. 2:10-cv-34, 2012 WL 4442740, at *2 (S.D. Ohio Sept. 25, 2012)(quoting 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." Penny v. Booker, No. 05-70147, 2006 WL 2008523, at *1 (E.D.Mich. July 17, 2006)(quoting United States v. Cahill-Masching, 2002 WL 15701, * 3 (N.DI ll.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." Id. (quoting Walker v. O'Brien, 216 F.3d 626, 631 (7th Cir. 2000)).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal is not in good faith.
Petitioner's Motion for a Certificate of Appealability and Motion for Leave to Appeal in forma pauperis, ECF 19, 20, are DENIED.
IT IS SO ORDERED. Date: February 2, 2015
s/James L. Graham
JAMES L. GRAHAM
United States District Judge