Tisdale v. Howes

Filing 34

ORDER denying 31 Motion for Certificate of Appealability; granting 32 Motion to Proceed In Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TORIANO TISDALE,
Petitioner,

Civil No. 08-CV-11693
Honorable Arthur J. Tarnow

CAROL R. HOWES,
Respondent.
/
ORDER DENYING PETITIONER'S MOTION FOR CERTRIFICATE OF
APPEALABILITY [dkt. # 31] AND GRANTING PETITIONER'S MOTION TO
PROCEED IN FORMA PAUPERIS [dkt. #32]
Before the court is Petitioner's motion for a certificate of appealability and motion to
proceed in forma pauperis. On April 16, 2009, this court granted Respondent's motion for
summary judgment and denied the petition for a writ of habeas corpus as untimely. The
Court of Appeals affirmed. Tisdale v. Howes, No. 09-1678 (6th Cir. June 29, 2010).
Petitioner then filed a motion for relief from judgment, and this court denied it on May 12,
2011. Petitioner seeks permission to appeal this decision to the Court of Appeals.
A habeas petitioner is required to obtain a certificate of appealability before he can
appeal the denial of a 60(b) motion for relief from judgment which seeks to challenge the
judgment in a habeas case. See United States v. Hardin, 481 F. 3d 924, 926 (6th Cir.
2007). To obtain a certificate of appealability, a prisoner must make a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2), which the United States
Supreme Court has construed to mean that an applicant must show that reasonable jurists
could debate that the petition could have been resolved differently or that the claims raised
deserved further review." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

Reasonable jurists would not conclude that the issues raised in Petitioner's motion
for relief from judgment deserve further review. As explained in the order denying that
motion, Petitioner does not raise any legitimate arguments calling into question the finding
by this court and the court of appeals that his habeas petition was untimely filed. Therefore,
a certificate of appealability is DENIED.
The standard for obtaining IFP status is less burdensome. A court may grant IFP
status if the Court finds that an appeal is being taken in good faith. See 28 U.S.C. §
1915(a)(3); Fed. R.App.24 (a); Foster v. Ludwick, 208 F. Supp. 2d 750, 765 (E.D. Mich.
2002). Although the court finds that Petitioner's substantive arguments have no merit, this
Court does not find that petitioner's appeal was not undertaken in good faith and will grant
his request for leave to appeal in forma pauperis.
Based upon the foregoing, IT IS ORDERED that a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that the motion for leave to appeal in forma pauperis
is GRANTED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: July 21, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record
on July 21, 2011, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Secretary

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