McMillian v. Mitchem

Filing 29

ORDER denying [] Motion for Certificate of Appealability; denying 26 Motion for Leave to Appeal in forma pauperis. Signed by Chief Judge William H. Steele on 9/26/2011. (mbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MELVIN McMILLIAN,
Petitioner,
v.
BILLY MITCHEM,
Respondent.

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CIVIL ACTION 11-0005-WS

ORDER
This closed habeas matter comes before the Court on petitioner’s Application for
Certificate of Appealability (doc. 25) and Motion for Order Granting Leave to Proceed on
Appeal In Forma Pauperis (doc. 26).
On August 16, 2011, the undersigned entered an Order (doc. 23) and Judgment (doc. 24)
denying petitioner Melvin McMillian’s Petition for Writ of Habeas Corpus by a Person in State
Custody under 28 U.S.C. § 2254. That Order adopted a Report and Recommendation (doc. 21)
in which the Magistrate Judge recommended that McMillian’s habeas petition be denied because
five of his asserted grounds for relief were procedurally defaulted and his sixth ground (use of
hearsay evidence at trial) was meritless because the defendant was not deprived of a
fundamentally fair trial by the admission of such evidence, and the state appellate court’s
decision on that claim was well reasoned and well supported by applicable law.
The August 16 Order specifically determined that McMillian was not entitled to a
certificate of appealability (“COA”) or to appeal in forma pauperis. Notwithstanding that ruling,
McMillian now seeks both a COA and in forma pauperis status on appeal. He has come forward
with no viable basis for disturbing or reconsidering this Court’s prior rulings on these issues.
A petitioner is entitled to a COA “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard
by demonstrating that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Darling v. Secretary, Dep’t of Corrections, 619 F.3d 1279,
1282 (11th Cir. 2010) (citation omitted). Petitioner has not come forward with any showing that
jurists of reason could disagree that five of his claims are procedurally defaulted and that the
sixth concerns an evidentiary ruling that did not render his trial fundamentally unfair so as to
entitle him to habeas relief. For that reason, and for the reasons stated herein and on pages 8
through 10 of the Report and Recommendation, the Court finds that McMillian has failed to
make the requisite showing that the issues presented are adequate to deserve encouragement to
proceed further.
Similarly, even if a petitioner is economically eligible, “[a]n appeal may not be taken in
forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. §
1915(a)(3); see also Busch v. County of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). An
appeal is not taken in good faith if it is plainly frivolous.1 The Court certifies that McMillian’s
appeal from the denial of his § 2254 petition is plainly frivolous for the reasons stated above and
in the Report and Recommendation, as adopted.
For all of the foregoing reasons, the Application for Certificate of Appealability (doc. 25)
and Motion for Order Granting Leave to Proceed on Appeal In Forma Pauperis (doc. 26) are
denied.
DONE and ORDERED this 26th day of September, 2011.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

1

United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997); DeSantis v.
United Technologies Corp., 15 F. Supp. 2d 1285, 1289 (M.D. Fla. 1998) (appeal is not taken in
good faith when it fails to “seek[] appellate review of any issue that is not frivolous”), aff’d, 193
F.3d 522 (11th Cir. 1999); United States v. Durham, 130 F. Supp. 445 (D.C. D.C. 1955) ("good
faith" means the existence of a substantial question or one which has merit and is not frivolous);
Sejeck v. Singer Mfg. Co., 113 F. Supp. 281 (D.C. N.J. 1953) ("in good faith" means that points
on which appeal is taken are reasonably arguable); United States v. Gicinto, 114 F. Supp. 929
(W.D. Mo. 1953) (the application should be denied if the trial court is of opinion that the appeal
is frivolous, and without merit, and a futile proceeding); see generally Napier v. Preslicka, 314
F.3d 528, 531 (11th Cir. 2002) (action is frivolous for § 1915 purposes if it is without arguable
merit either in law or in fact); Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (same).

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