Whitt v. Warden Lebanon Correctional Institution, No. 2:2012cv00731 - Document 65 (S.D. Ohio 2014)

Court Description: OPINION AND ORDER denying 60 Motion ; denying 63 Motion for Leave to Appeal in forma pauperis; deferring ruling on 64 Motion. Signed by Judge James L Graham on 9/9/2014. (ds)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION STEPHEN WHITT, CASE NO. 2:12-CV-731 JUDGE JAMES L. GRAHAM Magistrate Judge Elizabeth A. Preston Deavers Petitioner, v. WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent. OPINION AND ORDER On August 7, 2014, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter now is before the Court on Petitioner s August 15, 2014, Notice of Appeal, which this Court construes as a request for a certificate of appealability, and his request to proceed in forma pauperis on appeal. (ECF Nos. 61, 63.) For the reasons that follow, Petitioner s request for a certificate of appealability and his request to proceed in forma pauperis on appeal (ECF Nos. 61, 63) are DENIED. Petitioner s Motion to Review Supplemental Brief and his request for transcripts (ECF Nos. 60, 64) are also DENIED. Petitioner asserts that the trial court lacked jurisdiction, his convictions are against the manifest weight of the evidence and not supported by constitutionally sufficient evidence, he was convicted in violation of the Fourth Amendment, denied effective assistance of counsel and the right to a jury trial, and was improperly sentenced. The Court dismissed all of these claims as procedurally defaulted or without merit. Where a claim has been denied on the merits, a certificate of appealability may issue where the petitioner establishes 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. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)(citing 28 U.S.C. § 2253(c); Barefoot v. Estelle, 463 U.S. 880, 894 (1983)). Where a claim has been dismissed on procedural grounds, a certificate of appealability shall issue where jurists of reason would find it debatable whether the Court was correct in its procedural ruling that petitioner waived his claims of error, and whether petitioner has stated a viable constitutional claim. Slack v. McDaniel, 529 U.S. at 484 85. Both of these showings must be made before a court of appeals will entertain the appeal. Id. This Court is not persuaded that Petitioner has met either of these standards here. Petitioner's request for a certificate of appealability, therefore is DENIED. Petitioner's motion to proceed in forma pauperis on appeal also is 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 filed-certifies 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. Mich., July 17, 2006). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal is not taken in good faith. Petitioner's request for a certificate of appealability, and request to proceed in forma pauperis on appeal (ECF Nos. 61, 63) are DENIED. Petitioner s Motion to Review Supplemental Brief and his request for transcripts (ECF Nos. 60, 64) are DENIED. IT IS SO ORDERED. Date: September 9, 2014 s/James L. Graham JAMES L. GRAHAM United States District Judge .

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