Fletcher v. Hulick et al
Filing
81
ORDER denying 75 Motion for Certificate of Appealability; granting 78 Motion for Leave to Appeal in forma pauperis. Signed by Judge G. Patrick Murphy on 1/13/2012. (MAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT D. FLETCHER
Petitioner,
vs.
DAVE REDNOUR,
Respondent.
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CIVIL NO. 08 - 266 - GPM
MEMORANDUM AND ORDER
MURPHY, District Judge:
On January 21, 2000, a Madison County, Illinois jury found Petitioner Robert D. Fletcher
guilty for the murder of Brian Warr. Mr. Fletcher appealed his conviction and sentence, and
ultimately obtained a twenty year reduction in his sentence. Mr. Fletcher also filed several
unsuccessful petitions for post-conviction relief. In 2008, Mr. Fletcher filed a pro se petition for writ
of habeas corpus in the District Court for the Southern District of Illinois. Mr. Fletcher’s second
amended petition, which is the operative petition here, asked the Court to discharge Mr. Fletcher
from his conviction and sentence under 28 U.S.C. § 2254.
Mr. Fletcher’s petition raised twelve grounds for relief, six of which he failed to raise in his
direct appeal or his first post conviction petition and subsequent appeal. Therefore, these six claims
failed to receive a complete round of state court review, and this Court procedurally defaulted the
six claims. The Court denied Mr. Fletcher’s remaining six claims for relief on their merits.
On December 8, 2011, Mr. Fletcher filed a notice of appeal and contemporaneous request
for certification of appealability pursuant to Rule 4(a)(1) of the Federal Rules of Appellate
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Procedure and 28 U.S.C. § 2253. Accordingly, Mr. Fletcher’s certification of appealability is the
matter now before the Court. “A certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). See also
Young v. United States, 124 F.3d 794, 798-99 (7th Cir. 1997); Nunez v. United States, 96 F.3d 990,
991-92 (7th Cir. 1996). “A petitioner makes a substantial showing where reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to proceed further.”
Sandoval v. United States, 574 F.3d 847, 852 (7th Cir. 2009), quoting Arredondo v. Huibreqtse, 542
F.3d 1155, 1165 (7th Cir. 2008).
For the reasons set forth in the Court’s September 30, 2011 memorandum and order (see
Doc. 67), Mr. Fletcher has not made a substantial showing of the denial of a constitutional right.
Accordingly, the Court DECLINES to issue a certificate of appealability. Pursuant to Federal Rule
of Appellate Procedure 22(b), Mr. Fletcher may renew his request for a certificate of appealability
to the Court of Appeals for the Seventh Circuit.
Mr. Fletcher also seeks leave to proceed in forma pauperis on appeal. The declaration
supporting Mr. Fletcher’s application to proceed in forma pauperis contains the requisite
information and reveals he is incarcerated at Menard Correctional Center and had, at the time of
filing, $39.00 in a checking or savings account; the only valuable property he owns is a television
worth $120.00. As such, the Court finds Mr. Fletcher is indigent within the meaning of 28 U.S.C.
§ 1915(a)(3). Despite having declined to issue a certificate of appealability, the Court cannot find
Mr. Fletcher’s request for review is not taken in good faith. See Walker v. O’Brien, 216 F.3d 626,
631-32 (7th Cir. 2000) (explaining that the standard governing the issuance of a certificate of
appealability is more demanding than the standard for determining whether an appeal is taken in
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good faith for purposes of proceeding in forma pauperis on appeal). Accordingly, Mr. Fletcher’s
motion to proceed in forma pauperis on appeal (Doc. 78 ) GRANTED.1
IT IS SO ORDERED.
DATED: January 12, 2012
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G. PATRICK MURPHY
United States District Judge
1.
This a collateral action attacking Mr. Fletcher’s underlying conviction and sentence, thus
the filing fee provisions of 28 U.S.C. § 1915(b) do not apply. See generally Walker v. O’Brien,
216 F.3d 626, 628-29 (7th Cir. 2000) (holding that the Prison Litigation Reform Act does not
apply to any requests for collateral relief under 28 U.S.C. §§ 2241, 2254, or 2255).
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