Foster v. Winn

Filing 27

OPINION and ORDER Granting Certificate of Appealability as to One Issue and Granting Leave to Procced In Forma Pauperis on Appeal. Signed by District Judge Laurie J. Michelson. (EPar)

Case 2:15-cv-12265-LJM-SDD ECF No. 27, PageID.6429 Filed 08/28/23 Page 1 of 2

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ED FOSTER,
Petitioner,
v.

Case No. 15-12265
Honorable Laurie J. Michelson

CHRIS KING,
Respondent.
OPINION AND ORDER GRANTING
CERTIFICATE OF APPEALABILITY AS TO ONE ISSUE AND
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Ed Foster filed a pro se petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. Pursuant to an order docketed today, the Court denied Foster’s petition. The
Court now considers whether to issue a certificate of appealability.
Before Foster may appeal this Court’s decision, “a circuit justice or judge”
must issue a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App.
P. 22(b). 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).
The Court addressed Foster’s petition on the merits. So he must show “that
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.” See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003).

Case 2:15-cv-12265-LJM-SDD ECF No. 27, PageID.6430 Filed 08/28/23 Page 2 of 2

The Court finds that one of Foster’s claims has met these standards. Foster’s
false-testimony claim as to Nickerson involves confession evidence. See Jackson v.
Bradshaw, 681 F.3d 753, 763 (6th Cir. 2012) (referring to confession evidence as
“quite incriminating”). As such, reasonable jurists could debate whether Nickerson’s
testimony regarding his credibility would have caused the jury to disbelieve his
testimony about Foster’s confession and lead to a different outcome. So the Court
GRANTS a certificate of appealability on the false-testimony claim.
But given the deferential standards of the Antiterrorism and Effective Death
Penalty Act and Strickland v. Washington, 466 U.S. 668 (1984), as well as
considering the facts in the record, reasonable jurists could not debate that Foster’s
ineffective-assistance-of-counsel claims should be resolved in a different way. Thus,
the Court DENIES a certificate of appealability as to the remaining claims.
The standard for granting an application for leave to proceed in forma
pauperis is lower than the standard for granting a certificate of appealability.
Foster v. Ludwick, 208 F. Supp.2d 750, 764 (E.D. Mich. 2002). A court may grant in
forma pauperis status if it finds that an appeal could be taken in good faith. 28
U.S.C. § 1915(a) (3); Fed. R. App. P. 24(a)(3)(A). The Court finds that standard to be
met, so it GRANTS leave to proceed in forma pauperis on appeal.
SO ORDERED.
Dated: August 28, 2023
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
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