Washington #162021 v. Woods, No. 2:2009cv00045 - Document 38 (W.D. Mich. 2010)

Court Description: MEMORANDUM OPINION AND ORDER granting 36 motion for leave to appeal in forma pauperis and denying certificate of appealability with respect to all issues raised in petitioner's 2254 petition ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ANTHONY DWAYNE WASHINGTON, Plaintiff, File No. 2:09-CV-45 v. HON. ROBERT HOLMES BELL JEFFREY WOODS, Defendant. / MEMORANDUM OPINION AND ORDER Before the Court is a motion for leave to proceed in forma pauperis on appeal filed by Petitioner Anthony Dwayne Washington. (Dkt. No 36.) On November 20, 2009, the Court adopted a Report and Recommendation (R&R) recommending dismissal of Petitioner s habeas petition filed pursuant to 28 U.S.C. § 2254. (Dkt. No. 25, Mem. Op. & Order.) On January 7, 2010, Petitioner filed a notice of appeal. (Dkt. No. 33.) The R&R recommended denial of a certificate of appealability pursuant to Slack v. McDaniel, 529 U.S. 473 (2000). Though the Court s order adopted the R&R generally, it did not expressly deny a certificate of appealability. To clarify the Court s earlier order, the Court adopts the recommendation of the R&R to deny Petitioner a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). To warrant the grant of a certificate, Petitioner must demonstrate a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Petitioner s notice of appeal does not specify the specific issues that he wishes to appeal;1 however, Petitioner s habeas claims are clearly meritless for the reasons indicated in the R&R and the Court order adopting it. Reasonable jurists could not conclude that the Court s disposition of his claims was debatable or wrong. See Slack, 529 U.S. at 484. With respect to Petitioner s motion for leave to proceed in forma pauperis on appeal, the Court notes that the fee provisions of the Prison Litigation Reform Act of 1995, 28 U.S.C. § 1915, do not apply to an appeal from a decision on an application for habeas relief. Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir. 1997). Moreover, it appears that the issue of whether Petitioner s appeal is taken in good faith is not relevant because Petitioner did not proceed in forma pauperis in this action in the district court. See Fed. R. App. P. 24(a)(3). Petitioner s motion, which includes a record of his prison accounts and an affidavit regarding the nature of his appeal, substantially complies with the requirements of Rule 24(a)(1) of the Federal Rules of Appellate Procedure. In light of his indigence, Petitioner may proceed in forma pauperis on appeal without pre-paying or giving security for fees and costs. Fed. R. App. P. 24(a)(2). Accordingly, IT IS HEREBY ORDERED that Petitioner s motion to proceed in forma pauperis (Dkt. No. 36) is GRANTED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED with respect to all issues raised in Petitioner s § 2254 petition. Dated: January 21, 2010 /s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE 1 In such cases, the notice is deemed to be a request for review of all issues. In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). 2

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