Opinion
CASE NO. 2:10-CV-00035.
March 28, 2011
OPINION AND ORDER
On January 21, 2011, the Court entered final judgment dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d). On February 28, 2011, Petitioner filed a motion for a certificate of appealability. This Court construed Petitioner's motion as a notice of appeal and request for certificate of appealability, and denied that request. Opinion and Order, March 25, 2011, Doc. 26. This matter now is before the Court on Petitioner's March 18, 2011, motion to supplement his certificate of appealability, motion for reconsideration of final judgment of dismissal of his habeas corpus petition, and his March 25, request to proceed in forma pauperis on appeal and motion to submit his affidavit of indigency at a later date. Docs. 20-23. For the reasons that follow, Petitioner's requests, Docs. 20-23, are DENIED.
The filing of a notice of appeal divests this Court of jurisdiction except to act in aid of the appeal. Adkins v. Jeffries, 327 Fed.Appx. 537, unpublished, 2009 WL 1083850, at *2 (6th Cir. April 27, 2009) (citations omitted). Under these circumstances, this Court may consider whether Petitioner has raised any grounds under which the Court would be inclined to grant Petitioner's Rule 60(b) motion. If so, Petitioner may then request the United States Court of Appeals for the Sixth Circuit to remand the case in order that this Court may grant Petitioner's motion. Id. (citing First National Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6th Cir. 1976).
Here, even assuming that this court had jurisdiction to consider Petitioner's motion under Rule 60(b), Petitioner has raised no new grounds warranting relief. Petitioner contends that this Court wrongly dismissed his habeas corpus petition as time-barred. Petitioner argues that his conviction did not become final, under the authority of United States Supreme Courts decision in Jiminez v. Quarterman, 555 U.S. 113 (2009), holding that, "where a state courts grants the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment" does not become final under § 2244(d)(1)(A), until "the conclusion of direct review or the expiration of the time for seeking such review." See id. This case is not analogous to the scenario in Jiminez. This case involves the tolling caused by the filing of Petitioner's application to reopen his appeal under Ohio Appellate Rule 26(B), and not the state appellate court's consideration of a motion to file a delayed appeal, as was the case in Jiminez. As discussed in the Magistrate Judge's Report and Recommendation, the United States Court of Appeals for the Sixth Circuit has held that a Rule 26(B) motion constitutes a collateral attack on a criminal conviction under 28 U.S.C. § 2244(d)(2). Lopez v. Wilson, 426 F.3d 339, 346-48 (6th Cir. 2005) (en banc). Therefore, and contrary to Petitioner's argument here, the filing of his Rule 26(B) application only tolled the running of the statute of limitations during the time period such action remained pending in the state courts — and not during the time within he could have, but did not, file a petition for a writ of certiorari with the United States Supreme Court. Lawrence v. Florida, 549 U.S. 327, 332 (2007).
Thus, even if this Court had jurisdiction to consider Petitioner's motion under Rule 60(b), Petitioner has set forth no grounds which would justify granting him the relief he seeks.
Petitioner's motion to supplement his motion for a certificate of appealability, which raises these same arguments, likewise raises no grounds upon which this Court would be inclined to reconsider the denial of Petitioner's request for a certificate of appealability.
As to Petitioner's request to proceed in forma pauperis on appeal and to submit his affidavit of indigency at a later time, these motions likewise are 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. Federal Rule of Appellate Procedure 24(a)(3)(A) also provides:
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 filedcertifies that the appeal is not taken in good faith[.]Id. In addressing this standard, another court 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, 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, No. 05-70147, 2006 WL 2008523, at *1 (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. WHEREUPON, the Court DENIES Petitioner's motion to supplement his certificate of appealability, motion for reconsideration under Rule 60(b), request to proceed in forma pauperis on appeal and his request to submit an affidavit of indigency at a later date. Docs. 20-23.