Opinion
Case No. 03-CV-71656.
February 15, 2006
OPINION AND ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABLITY AND DENYING MOTION TO PROCEED IN FORMA PAUPERIS
Petitioner Artis X. Johnson, a state inmate currently incarcerated at the Carson City Correctional Facility in Carson City, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court issued an Opinion and Order transferring the petition to the Court of Appeals for the Sixth Circuit because it was a successive habeas petition. Petitioner then filed a "Motion for Habeas Corpus Ad Testificandum to Bring Up a Prisoner to Testify," which the court denied on December 15, 2005. Petitioner has filed a Notice of Appeal challenging the court's denial of that motion.
In a habeas corpus proceeding, an appeal may not be taken from "the final order in a habeas corpus proceeding" unless a certificate of appealability is issued. 28 U.S.C. § 2253(a). The Sixth Circuit Court of Appeals has not yet decided whether a certificate of appealability is required before a prisoner may appeal a collateral or interlocutory order. Lordi v. Ishee, 22 Fed. Appx. 585, 586 (6th Cir. 2001). However, even assuming that a certificate of appealability is required before a petitioner may appeal a collateral or interlocutory order, Petitioner is not entitled to issuance of a certificate of appealability in this case. The court of appeals may exercise jurisdiction only over final orders, 28 U.S.C. § 1291, or certain collateral or interlocutory orders as described in 28 U.S.C. § 1292. The court's "Order Denying Motion for Habeas Corpus Ad Testificandum to Bring Up a Prisoner to Testify" is not a final order, nor is it encompassed within the collateral or interlocutory orders described in § 1292. Moreover, the court declines to issue a certificate because reasonable jurists would not disagree with the court's conclusion that an evidentiary hearing was not warranted. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that district court should not grant a certificate of appealability unless "[t]he petitioner . . . demonstrate[s] that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."). Accordingly,
IT IS ORDERED that Petitioner is DENIED a certificate of appealability.
IT IS FURTHER ORDERED that Petitioner's "Motion for Leave to Proceed In Forma Pauperis" [Dkt. # 35] is DENIED. The court finds that the issues raised in Petitioner's appeal are frivolous and that he is not proceeding in good faith. See 28 U.S.C. § 1915(a)(3) (stating that an appeal may not be taken in forma pauperis "if the trial court certifies in writing that it is not taken in good faith.").