Fernandez v. USA

Filing 22

ORDER granting in part and denying in part 19 Motion for Certificate of Appealability: The Court DENIES Petitioner's motion for a certificate of appealability and GRANTS his motion for leave to appeal in forma pauperis. Signed by Judge Michael J. Reagan on 7/6/12. (caa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN GERARD FERNANDEZ,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 11-CV-0451-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
On June 14, 2012, the undersigned Judge denied Petitioner’s
motion for relief under 28 U.S.C. § 2255. Judgment was entered accordingly
on June 15, 2012. Fourteen days later, Petitioner filed a Notice of Appeal
and motion for certificate of appealability (Docs. 18, 19).
Petitioner has not paid the $455.00 fee for filing his notice of
appeal, which is required if he is to take an appeal from the denial of his §
2255 motion. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22. So, the
Court construes Petitioner’s notice as including a request for leave to
proceed in forma pauperis on appeal pursuant to 28 U.S.C. § 1915.
A certificate of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional right.”
U.S.C. § 2253.

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This requirement has been interpreted by the Supreme

Court to mean that an applicant must show that “reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner need
not show that his appeal will succeed, Miller-El v. Cockrell, 537 U.S. 322,
337 (2003), but he must show “something more than the absence of
frivolity” or the existence of mere “good faith” on his part.

Id. at 338

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). If the district
court denies the request, a petitioner may request that a circuit judge issue
the certificate. FED. R. APP. P. 22(b)(1)-(3).
The Court DENIES the motion for certificate of appealability
because – for the reasons stated in the June 14, 2012, Order – Petitioner
has not made a substantial showing that his sentence “was imposed in
violation of the Constitution or laws of the United States.” Shell v. United
States, 448 F.3d 951, 954 (quoting 28 U.S.C. § 2255); see 28 U.S.C.
§ 2253(c)(2). Furthermore, the Court finds no basis for a determination
that its decision is debatable or incorrect. Thus, Petitioner has not made “a
substantial showing of the denial of a constitutional right.”
IT IS THEREFORE ORDERED that a certificate of appealability
shall NOT be issued.
As amended by the Prison Litigation Reform Act (PLRA), 28
U.S.C. § 1915 sets forth three grounds for denying in forma pauperis status
to a prisoner appellant: the prisoner has not established indigence, the
appeal is in bad faith, or the prisoner has three strikes. 28 U.S.C. §

1915(a)(2)-(3), (g).

Since Petitioner does not have three strikes, the

Court need consider only the first two grounds.
28 U.S.C. § 1915(a)(1) provides that a United States District
Court may authorize commencement of a civil appeal without prepayment of
fees, by a person who submits an affidavit showing that he is unable to pay
the appeal fee.

Section 1915(a)(3) adds, however, that pauper status

cannot be granted if the appeal is not taken in good faith. 1 See also Moran
v. Sondalle, 218 F.3d 647, 651 (7th Cir. 2000)(“because these
appeals are not in good faith for purposes of § 1915(a)(3), we
revoke the orders permitting the appellants to proceed in forma
pauperis”); FED. R. APP. P. 24(a)(3)(A).
In general, subject to a finding of bad faith or that the party is
otherwise not entitled to proceed in forma pauperis, a defendant who is
found eligible for court-appointed counsel in a district court may proceed on
appeal in forma pauperis without further authorization. See Fed. R. App.
P. 24(a)(3). Petitioner was found eligible for court-appointed counsel in his
underlying criminal case. See United States v. Fernandez, Case No. 09-cr30156-MJR (S.D.Ill.) (Doc. 7).

The Court is convinced that Petitioner is

unable to pay the full costs of his appeal.
1

Petitioner’s appeal is not subject to the portions of § 1915 added by the PLRA, such as
the fee collection mechanism. Walker, 216 F.3d at 634 (“the PLRA does not apply to any
requests for collateral relief under 28 U.S.C. §§ 2241, 2254, or 2255.”). Although the PLRA
does not apply to Petitioner’s appeal, the Court still must decide whether he is able to pay a filing
fee and whether his appeal is taken in good faith. See 28 U.S.C. § 1915(a)(1) and (3); Walker,
216 F.3d at 638 n.5.

As to whether Petitioner’s appeal is taken in good faith, the
Seventh Circuit Court of Appeals has cautioned district courts not to apply an
inappropriately high standard when making good faith determinations. Pate
v. Stevens, 163 F.3d 437, 438-39 (7th Cir. 1998). The Court observed
that the threshold for obtaining a certificate of probable cause “is a higher
one than the ‘good faith’ requirement of Sec. 1915.” Id. at 439 (quoting
Barefoot, 463 U.S. at 893).
To conclude that an appeal is taken 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, 632 (7th Cir. 2000) (citing
Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000)). Thus, an
unsuccessful movant for relief under § 2255 may proceed in forma pauperis
on appeal even after a district court has denied issuance of a certificate of
appealability. See id. (concluding that an appeal can be taken in good
faith even though a certificate of appealability has been denied).
Petitioner has offered numerous grounds in support of his appeal
(Doc. 18). The Court concludes that the appeal is taken in good faith.
In summary, the Court finds that Petitioner has established his
indigence and that his appeal is taken in good faith. Accordingly, the Court
GRANTS in part and DENIES in part Petitioner’s motion (Doc. 19). The
Court DENIES Petitioner’s motion for a certificate of appealability and
GRANTS his motion for leave to appeal in forma pauperis.

IT IS SO ORDERED.
DATED this 6th day of July, 2012

s/Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge