Opinion
Case Number: 01-73859
August 7, 2002
OPINION AND ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY AND GRANTING REQUEST TO PROCEED ON APPEAL IN FORMA PAUPERIS
Petitioner Shannon Renee Basile, a state inmate currently incarcerated at the Scott Correctional Facility in Plymouth, Michigan, filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. On May 8, 2002, this Court issued an Opinion and Order Denying Petition for Writ of Habeas Corpus. Now before the Court are Petitioner's Request for Certificate of Appealability and Request to Proceed on Appeal In Forma Pauperis.
Before a habeas corpus petitioner may appeal a federal court's dispositive decision dismissing her petition, a certificate of appealability must issue. 28 U.S.C. § 2253 (c)(1)(A); Fed.R.App.P. 22(b). The Court must either issue a certificate of appealability indicating which issues satisfy the required showing or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253 (c)(3); Fed.R.App.P. 22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).
A certificate of appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2). The substantial showing threshold is satisfied when a petitioner demonstrates "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a prisoner's habeas corpus petition was denied on procedural grounds, a certificate of appealability "should issue . . . 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." Id.
Petitioner presented a single claim for relief in her habeas corpus petition: that she was entitled to resentencing because her sentence of thirteen years six months to twenty-five years imprisonment for the crime of second-degree murder was disproportionate.
There exists no constitutional right to strict proportionality in sentencing. Harmelin v. Michigan, 501 U.S. 957 (1997). However, the Eighth Amendment prohibits "extreme sentences that are grossly disproportionate to the crime." Id. at 995. The Sixth Circuit has held that "a sentence within the statutory maximum set by statute generally does not constitute `cruel and unusual punishment'." United States v. Organek, 65 F.3d 60, 62-63 (6th Cir. 1995). The State of Michigan sentencing guideline for second degree murder is life or any number of years. M.C.L.A. 750.317. Therefore, Petitioner was sentenced in accordance with the Michigan sentencing guidelines.
This Court held that, given the nature of the offense, the killing of Petitioner's eleven-week-old child, and the fact that Petitioner was sentenced within the state sentencing guidelines, Petitioner's sentence did not offend the Eighth Amendment and she therefore was not entitled to habeas corpus relief. This Court holds that reasonable jurists would not find the Court's conclusion in this regard to be debatable or wrong. See Slack, 120 S.Ct. at 1604. Therefore, Petitioner has failed to show that she is entitled to a certificate of appealability.
Petitioner also has filed a request to proceed on appeal informa pauperis. A party who has been permitted to proceed informa pauperis in district court may proceed on appeal informa pauperis without further authorization, unless the district court certifies that the appeal is not taken in good faith. Fed.R.App.P. 24(a)(3). "Good faith" is demonstrated when a party "seeks appellate review of any issue not frivolous." Coppedge v. U.S., 369 U.S. 438, 445 (1962). Although this Court has determined that reasonable minds would not find its resolution of Petitioner's claim to be debatable or wrong, that does not render her claim frivolous. See Foster v. Ludwick, ___ F. Supp.2d ___ 2002 WL 1302537, *14 (E.D. Mich. May 22, 2002). Therefore, the Court shall grant Petitioner's request to proceed on appeal informa pauperis.
Accordingly, IT IS ORDERED that Petitioner's Request for a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner's Request to Proceed on Appeal In Forma Pauperis is GRANTED.