Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hach v. Erwin

March 13, 2007

THOMAS HACH, PETITIONER,
v.
JAMES ERWIN, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Judge Graham

Magistrate Judge Abel

OPINION AND ORDER

On September 28, 2006, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 as time barred. This matter is before the Court on petitioner's October 17, 2006, notice of appeal, which the Court construes as a request for a certificate of appealability, and his request to proceed in forma pauperis on appeal. Doc. Nos. 19, 20. For the reasons that follow, petitioner's request for a certificate of appealability and his request to proceed in forma pauperis on appeal, Doc. Nos. 19, 20, both are DENIED.

In this federal habeas corpus petition, petitioner asserts that he was denied the effective assistance of trial and appellate counsel, and denied due process and the right to confront witnesses against him due to the admission of hearsay. On September 28, 2006, petitioner's §2254 petition was dismissed as barred by the one-year statute of limitations under 28 U.S.C. §2244(d)(2).

Where the Court dismisses a claim on procedural grounds, a certificate of appealability should issue when 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.

Slack v. McDaniel, 120 S.Ct. 1595 (2000). Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id. Petitioner has failed to establish that reasonable jurists could debate whether the Court was correct in its dismissal of this action as time-barred. The statute of limitations expired on February 17, 2002. Petitioner waited until May 24, 2006, to execute his habeas corpus petition. Id. Further, the record fails to reflect that equitable tolling of the statute of limitations is appropriate for the time period at issue here. See Jurado v. Burt, 337 F.3d 638,642-43 (6th Cir. 2003).

Petitioner's request for a certificate of appealability therefore is DENIED.

The Court must also consider petitioner's motion for leave to proceed in forma pauperis on appeal. 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. See also Federal Rule of Appellate Procedure 24(a)(3)(A):

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.

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.