Carmichael v. Davenport et al (INMATE 2)

Filing 28

OPINION AND ORDER: It is ORDERED that the 27 Motion filed by Leon Carmichael, Jr., for an Extension of Time in which to file a "C.O.A." is granted to the following extent: (1) The motion is treated as a notice of appeal pursuant to Fed. R. App. P. 4(a), and is deemed timely filed. (2) Petitioner Carmichael is given until 8/19/2014, to set forth why the court should grant a certificate of appealability as to some or all of the issues in this case, that is, why the court should find petitioner Carmichael "has made a substantial showing of the denial of a constitutional right" as to particular issues. 28 U. S. C. 2253(c)(2). (3) If petitioner Carmichael seeks to proceed on appeal in forma pauperis, he is given until 8/1 9/2014, to set forth further why the court should find that his appeal is being "taken in good faith", 28 § U.S.C. § 1915(a)(3), that is, why the court should not find that the appeal is frivolous, Coppedge v. United States, 369 U .S. 438, 445 (1962), or has no substantive merit. United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir.Unit B May 15, 1981) (per curiam); otherwise, he should pay the appellant filing fee (& 505.00) by then. Signed by Honorable Judge Myron H. Thompson on 5/21/2014. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

LEON CARMICHAEL, JR.,

)
)
)
)
)
)
)
)
)
)

Petitioner,
v.
WARDEN CARTER DAVENPORT,
et al.,
Respondents.

CIVIL ACTION NO.
2:12cv138-MHT
(WO)

OPINION AND ORDER
This matter is before the court on the motion, filed
by petitioner Leon Carmichael, Jr., for an extension of
time

in

which

to

file

a

“C.O.A.”

In

his

motion,

Carmichael, who is incarcerated, notes that he has tested
positive for tuberculosis and has been placed on medical
quarantine.

As a result, he is unable to access the

prison’s law library.

He argues that these circumstances

constitute good cause for an extension of time.
It is apparent from the thrust of Carmichael’s motion
that what he ultimately seeks is appellate review of the
court’s denial of his habeas corpus petition, which he

filed

pursuant

to

28

U.S.C.

§

2254.

Carmichael

Davenport, 2014 WL 1681708 (M.D. Ala. Apr. 28, 2014).

v.
The

court is convinced that, regardless of the procedural
details, Carmichael seeks to do whatever is necessary to
appeal the court’s denial.

However, it also appears that

he is somewhat confused about the procedural details.
In order to appeal in this case, Carmichael must do
three things.

First, he must timely file a notice of

appeal pursuant to Fed. R. App. P. 4(a).

Second, he must

obtain a “certificate of appealability,” either from this
court or from the Eleventh Circuit Court of Appeals.

28

U.S.C. § 2253(c)(1); see also Fed. R. App. P. 22(b)(1);
Rules Governing § 2254 Cases, Rule 11.

Such a certificate

may be issued, as to specific issues in the case, “only if
the applicant has made a substantial showing of the denial
of a constitutional right.”
(c)(3).

Third,

he

must

28 U.S.C. § 2253(c)(2),

either

pay

the

filing

fee

($ 505.00) or proceed in forma pauperis; however, if he
intends to pursue the second course, 28 U.S.C. § 1915(a)(3)

2

provides 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.”

In making this determination

as to good faith, a court must use an objective standard,
such as whether the appeal is “frivolous,” Coppedge v.
United States, 369 U.S. 438, 445 (1962), or “has no
substantive merit.”

United States v. Bottoson, 644 F.2d

1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam); see
also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982)
(per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir.
1981).
In his motion, Carmichael seeks additional time to
file a “C.O.A.,” presumably referring to the required
certificate of appealability.

There is no time limit on

when he may seek such a certificate from this court, and
thus no need for an extension of time.
a

time

limitation

on

filing

his

There is, however,
notice

of

appeal:

ordinarily, such a notice must be filed within 30 days
after the entry of judgment.

3

Fed. R. App. P. 4(a)(1)(A).

Because it is clear from his motion that Carmichael
ultimately seeks to appeal the court’s denial of his habeas
petition, Carmichael v. Davenport, 2014 WL 1681708 (M.D.
Ala. Apr. 28, 2014), the court will treat his motion as the
required notice of appeal. In this case, the court entered
judgment on April 28, 2014, so the court deems this notice
of appeal to be timely filed. The court will further allow
Carmichael time to submit argument regarding the other two
requirements for filing an appeal.
***
Accordingly, it is ORDERED that the motion filed by
petitioner Leon Carmichael, Jr., for an extension of time
in which to file a “C.O.A.” (doc. no. 27.) is granted to
the following extent:
(1) The motion is treated as a notice of appeal
pursuant to Fed. R. App. P. 4(a), and is deemed timely
filed.
(2) Petitioner Carmichael is given until August 19,
2014, to set forth why the court should grant a certificate

4

of appealability as to some or all of the issues in this
case,

that

is,

why

the

court

should

find

petitioner

Carmichael “has made a substantial showing of the denial
of a constitutional right” as to particular issues.

28

U.S.C. § 2253(c)(2).
(3) If petitioner Carmichael seeks to proceed on
appeal in forma pauperis, he is given until August 19,
2014, to set forth further why the court should find that
his appeal is being “taken in good faith”, 28 U.S.C.
§ 1915(a)(3), that is, why the court should not find that
the appeal is “frivolous,” Coppedge v. United States, 369
U.S. 438, 445 (1962), or “has no substantive merit.”
United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir.
Unit B May 15, 1981) (per curiam); otherwise, he should pay
the appellant filing fee (& 505.00) by then.
DONE, this the 21st day of May, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE