Blount v. People of MI Warden Steve Rivard
OPINION & ORDER Denying Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Granting Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Mark A. Goldsmith. (Sandusky, K)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-cv-13669
HON. MARK A. GOLDSMITH
OPINION & ORDER
DENYING PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO PROCEED IN
FORMA PAUPERIS ON APPEAL
Petitioner NaQunn Blount filed a pro se petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 (Dkt. 1), challenging his Macomb County Circuit Court no contest plea
convictions for two counts of first-degree criminal sexual conduct, Mich. Comp. Laws
§ 750.520b (use of a weapon); one count of armed robbery, Mich. Comp. Laws § 750.529; and
one count of identity theft, Mich. Comp. Laws § 445.65.
Petitioner was sentenced to
concurrent 20 to 40 years’ imprisonment for the sexual misconduct and robbery convictions, and
one to five years’ imprisonment for the identity theft conviction.
The petition raises two claims: (i) Petitioner’s no contest plea was not knowing or
voluntary where he was not informed that his plea acted to waive antecedent claims of error, and
(ii) Petitioner was denied the effective assistance of counsel where his attorney misled him as to
the sentencing consequences of his no contest plea.
For the reasons stated below, the Court
denies the petition, declines to issue a certificate of appealability, but grants permission to
proceed on appeal in forma pauperis.
Petitioner’s convictions came about after he abducted a woman who was walking along a
sidewalk at night.
Petitioner forced the victim into an alley, raped her twice at knife-point, and
then stole some of her belongings.
At a pretrial hearing held a few days before trial was scheduled to start, the prosecutor
indicated that it was not making any plea offers to Petitioner.
The prosecutor informed the
court that Petitioner was on probation for armed robbery at the time of the offense, the
sentencing guidelines called for a minimum sentence between 14 and 24 years, and the
prosecution would be seeking consecutive sentencing if it obtained a conviction. 6/10/2014
Hr’g Tr. at 6-7 (Dkt. 9-10).
Three days later, Petitioner entered his no contest plea. 6/13/2014 Plea Tr. (Dkt. 9-11).
The Court indicated that it understood Petitioner was going to plead no contest to the four
Id. at 3.
seek consecutive sentences.
In exchange for the plea, the prosecutor indicated that it would not
Id. at 4.
Petitioner was place under oath and affirmed that he was pleading no contest to two
counts of first-degree criminal sexual conduct, one count of armed robbery, and one count of
Id. at 6-7.
Petitioner indicated that he was 18 years old and graduated from
Id. at 7. He denied that he was under the influence of drugs or alcohol. Id.
He affirmed that he could read and write. Id. Petitioner acknowledged his understanding of
his right to the assistance of counsel, he affirmed that he had discussed the case with his attorney,
and he indicated that he was satisfied with the advice he received. Id. at 7-8.
understood that, by pleading no contest, he was waiving his right to a trial and to all of his trial
rights. Id. at 8.
Petitioner indicated that he read the advice of rights form, he understood those
rights, and he signed the form.
Petitioner stated that he was pleading no contest to the charges as the result of his own
choice to do so.
Id. at 8.
Petitioner understood that the maximum sentence he could receive
as the result of his plea was life imprisonment. Id. at 9. Petitioner understood he would also
be required to submit to lifetime electronic monitoring.
Petitioner denied that he had been promised anything by the court, the prosecutor, or his
attorney with respect to any particular sentence in exchange for his plea.
Id. at 10.
indicated that he had only been informed by his counsel what the sentencing guidelines were.
Id. The prosecutor then explained that the guidelines might be calculated as high as 270-to-450
months for Petitioner’s minimum sentence.
Id. at 10-11.
Petitioner agreed that he was
informed of this range. Id.
Petitioner denied that anyone had tried to force him to enter his plea, or that anyone
mistreated him or pressured him.
Id. at 11.
He denied that anyone had promised him that the
court would go easy on him if he entered his plea. Id. Petitioner indicated that he was
pleading no contest freely and voluntarily because it was his own choice.
acknowledged his understanding that if his plea was accepted, then any appeal would be by
application for leave to appeal and not as a matter of right. Id. at 11-12.
that a no contest plea would be treated as a guilty plea for sentencing purposes.
Id. at 12.
The prosecutor used a police and lab report to establish the factual basis for the plea:
It indicates that on September 25, 2013, at approximately 2210
hours, defendant walked northbound on Van Dyke from 8 Mile
following behind Shannon Cole, the victim, on the west side of the
sidewalk on Van Dyke. Defendant forcefully grabbed victim’s
hair on the back of her head while holding what victim believed
was a knife to her throat. Defendant poked the knife into the side
of the victim, walked the victim into the alley, slammed and hit the
victim’s head causing victim to black out. Victim woke up with
her pants and underwear at her knees. Defendant walked victim
farther down an alley, knocking her to the ground, forced the
victim to perform fellatio on him and the defendant placed his
penis inside victim’s vagina forcing sexual intercourse. The
victim was treated at St. John Macomb Hospital and a SANE exam
was completed. Defendant confessed to the crime and wrote a
I have a lab number here, SH 133043, from the Northville lab,
indicating that this semen that was recovered from the vaginal
wall, the swab from the SANE exam of Shannon Cole that they
matched the sperm and the DNA type of Naqunn Karriem Blount.
As far as the identity theft and the armed robbery, your Honor, I
will be citing from the police report, 1358171. It’s the same
amount, it’s the same night, same day. After this happened, the
sexual assault, Shannon, the victim, stated the suspect took her
government-issued cell phone, credit card, and a bottle of her
medication. While she was being interviewed at the hospital, she
checked her credit card account from her phone just shortly after
the sexual assault, and she confirmed that two transactions had
been completed with the credit card stolen by the suspect. And
we also have a receipt from Speedway in Sterling Heights for
forty-eight fifty-six where he used her credit card to buy gasoline.
Id. at 12-14.
Petitioner indicated that he understood he was giving up any claim that the plea was the
result of any promises or threats that he did not disclose. Id. at 14. He was also giving up any
claim that it was not his choice to enter the plea.
Both attorneys denied knowledge of any
promises, threats, or inducements for the plea other than what was placed on the record.
Petitioner indicated that he was on probation at the time of the offense, and that the new
conviction might have an adverse effect on his probationary status. Id. at 15. After all of this,
the court found that Petitioner’s plea was knowing, freely, and voluntarily made.
At the sentencing hearing, Petitioner initially indicated that he did not want to go forward
with his plea, which the court had accepted but held under advisement.
Tr. at 3 (Dkt. 9-12). The trial court was open to granting the request, stating that Petitioner
would be given an opportunity to meet with his counsel and, “if you feel you don’t have the
information and you don’t want to go forward and you want to withdraw your plea, I’m going to
set it for trial and then we’ll all learn whatever it is that you don’t think you know. But, I’m
done dinging around with this, frankly.
We’re going to try the case or we’re going to resolve it.
I have no preference which one you do.”
Id. at 4.
After about a half-hour recess, defense
counsel informed the court that Petitioner decided to proceed with the plea.
Id. at 5-6.
allocution, Petitioner said, “I want to apologize to the court for my actions and take
responsibility for them.”
Id. at 10. The trial court then sentenced Petitioner to the prison
terms indicated above.
Petitioner was appointed appellate counsel who filed a motion to withdraw the plea.
hearing was held on the motion.
3/30/2015 Hr’g Tr. (Dkt. 9-13).
Appellate counsel indicated
that Petitioner pled under the erroneous belief that he would be able to appeal issues relating to
his arrest, seizure of evidence, effectiveness of counsel, sufficiency of evidence, and the use of
his prior conviction.
Id. at 4.
If Petitioner had known that he could not appeal those issues, he
would not have entered his plea. Id.
The trial court reviewed the record and found that
Petitioner’s plea was knowingly and voluntarily entered despite his allegations. Id. at 5-6.
Following his conviction and sentence, Petitioner’s appellate counsel filed a delayed
application for leave to appeal in the Michigan Court of Appeals, raising the following claims:
Defendant is entitled to an opportunity to withdraw his no
contest plea where it was not knowing, voluntary and
intelligent because he was under a misapprehension of law
where he believed that he had a right to appeal issues related to
the investigation, arrest, seizure of DNA, ineffective assistance
of counsel, insufficient evidence, prior convictions, and other
issues he believed were present in his case.
Defendant’s sixth and Fourteenth Amendment rights were
violated by judicial fact finding that increased the floor of the
permissible sentence in violation of Alleyne v. U.S., 133 S. Ct.
2151 (2013); defense counsel was ineffective in failing to
object and/or in agreeing to the scoring.
Petitioner also filed a pro se supplemental brief raising the following additional claim:
Defendant is entitled to an opportunity to withdraw his no
contest plea where his Fifth, Sixth, and Fourteenth Amendment
rights were violated due to counsel’s failure to investigate
evidence that if presented at a trial, would have a good chance
of resulting in acquittal, and failure to file specific pretrial
motions that had a reasonable probability of suppressing
material prosecution evidence or dismissing the charges with
The Michigan Court of Appeals affirmed denied the application for leave to appeal “for
lack of merit in the grounds presented.” People v. Blount, No. 326971 (Mich. Ct. App. June 3,
2015) (Dkt. 9-14).
Petitioner subsequently filed an application for leave to appeal in the
Michigan Supreme Court, raising the same claims as in the Michigan Court of Appeals.
Michigan Supreme Court remanded the case to the trial court so that it could reconsider
Petitioner’s sentence in light of People v. Lockridge, 870 N.W.2d 502 (Mich. 2015).
Blount, 872 N.W.2d 470 (Mich. 2015).
As of the date of this opinion, Petitioner is still
The issues presented in the petition, which challenge Petitioner’s
convictions and not his sentences, were rejected by the Michigan Supreme Court by an order
indicating that it “was not persuaded that the questions presented should be reviewed.” Id.
II. STANDARD OF REVIEW
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, imposes the following standard of
review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if the state court
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the
state court decides a case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). An “unreasonable
application” occurs when “a state-court decision unreasonably applies the law of [the Supreme
Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the
writ simply because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.” Id. at 411.
The Supreme Court has explained that a “federal court’s collateral review of a state-court
decision must be consistent with the respect due state courts in our federal system.” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003). Thus, the AEDPA “imposes a highly deferential standard for
evaluating state-court rulings, and demands that state-court decisions be given the benefit of the
doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010). A “state court’s determination that a claim
lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the
correctness of the state court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011). The
Supreme Court has emphasized “that even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.”
Furthermore, pursuant to section 2254(d), “a
habeas court must determine what arguments or theories supported or . . . could have supported,
the state court’s decision; and then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior decision” of
the Supreme Court. Id. Habeas relief is not appropriate unless each ground that supported the
state-court’s decision is examined and found to be unreasonable under the AEDPA. See Wetzel
v. Lambert, 132 S. Ct. 1195, 1199 (2012).
“If this standard is difficult to meet, that is because it was meant to be.” Harrington, 131
S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar
federal courts from re-litigating claims that have previously been rejected in the state courts, it
preserves the authority for a federal court to grant habeas relief only “in cases where there is no
possibility fairminded jurists could disagree that the state court’s decision conflicts with” the
Supreme Court’s precedents. Id. Indeed, section 2254(d) “reflects the view that habeas corpus
is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for
ordinary error correction through appeal.” Id. A “readiness to attribute error [to a state court] is
inconsistent with the presumption that state courts know and follow the law.” Woodford v.
Viscotti, 537 U.S. 19, 24 (2002). Therefore, in order to obtain habeas relief in federal court, a
state prisoner is required to show that the state-court’s rejection of his claim “was so lacking in
justification that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 131 S. Ct. at 786-787.
A state court’s factual determinations are presumed correct on federal habeas review. See
28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption of correctness only with
clear and convincing evidence. Id.; Warren v. Smith, 161 F.3d 358, 360-361 (6th Cir. 1998).
Moreover, habeas review is “limited to the record that was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
A. Validity of No Contest Plea
Petitioner first asserts that his plea was involuntarily entered in violation of due process
because he was not informed during the plea colloquy that he would be unable to appeal issues
related to the investigation of his case, his warrantless arrest, seizure of his DNA, ineffective
assistance of counsel, use of his prior convictions for sentencing, as well as other unspecified
issues. Pet. at 5.
The AEDPA deferential standard of review applies to this claim because the Michigan
Court of Appeals rejected Petitioner’s application for leave to appeal “for lack of merit in the
This decision amounted to a decision on the merits.
Werth v. Bell, 692
F. 3d 486, 492-494 (6th Cir. 2012).
Under clearly established U.S. Supreme Court law, in order for a guilty plea to be
constitutional it must be knowing, intelligent, voluntary, and done with sufficient awareness of
the relevant circumstances and likely consequences. Bradshaw v. Stumpf, 545 U.S. 175, 183
The identical standard applies to a plea of no contest or nolo contendere. Fautenberry
v. Mitchell, 515 F.3d 614, 636-637 (6th Cir. 2008).
For a guilty or no contest plea to be
voluntary, the defendant must be
fully aware of the direct consequences, including the actual value of any
commitments made to him by the court, prosecutor, or his own counsel, [and not]
induced by threats (or promises to discontinue improper harassment),
misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by
promises that are by their nature improper as having no proper relationship to the
prosecutor’s business (e.g. bribes).
Brady v. United States, 397 U.S. 742, 755 (1970) (emphasis added). To be informed of the
direct consequences of his plea, the defendant must be made aware of the maximum sentence
that can be imposed for the crime for which he is pleading. King v. Dutton, 17 F.3d 151, 154
(6th Cir. 1994).
The voluntariness of a guilty or no contest plea is determined in light of all relevant
circumstances surrounding the plea. Brady, 397 U.S. at 749.
A plea-proceeding transcript
which suggests that a guilty or no contest plea was made voluntarily and knowingly creates a
“heavy burden” for a petitioner seeking to overturn his plea.
326-328 (6th Cir. 1993).
Garcia v. Johnson, 991 F.2d 324,
Where the transcript shows that the guilty or no contest plea was
voluntary and intelligent, a presumption of correctness attaches to the state-court findings of fact
and to the judgment itself.
Id. at 326-327.
Petitioner’s claim that his plea was unknowing or involuntary because he was not
informed that his no contest plea acted to foreclose review of alleged antecedent errors fails
because it cannot be supported by clearly established Supreme Court law.
Under established Supreme Court law, a criminal defendant must only be advised of the
“direct consequences” of a plea, Brady, 397 U.S. at 748, and need not be advised of the indirect
or collateral consequences of a plea, King, 17 F.3d at 153.
Direct consequences generally
include matters within the trial court’s immediate control, such as the waiver of trial rights and
the sentence that will be imposed. Indirect consequences, on the other hand, generally include
matters outside the trial court’s direct control, including how or whether claims of antecedent
error will be reviewed by an appellate court.
See United States v. Adigun, 703 F.3d 1014, 1020
(7th Cir. 2012) (“We have previously held that the trial court is not obligated to inform
defendants of the consequences of an unconditional plea on a potential appeal.”); Upton v. Hoyt,
43 F. App’x 34, 35 (9th Cir. 2002) (“Here, because the decision on Upton’s constitutional
challenge to her sentence was in the hands of another governmental agency, the state appellate
court, the ‘consequences’ complained of by Upton are collateral, not direct.
trial court was not required to advise Upton that the Oregon Court of Appeals might decline to
review the merits of her constitutional challenge to her sentence.”).
Petitioner cites no clearly
established Supreme Court requirement that, for a guilty plea to be knowingly entered, a
defendant must be informed that appellate review of claimed antecedent errors might be limited.
Moreover, an examination of all the relevant circumstances surrounding the plea, as
revealed by the plea transcript, shows that Petitioner’s plea was entered knowingly and
Petitioner was advised of all the trial rights he was waiving by entering his plea,
and he was informed of the maximum possible sentence, as well as a preliminary calculation of
sentencing guidelines. By pleading no contest he was informed that the prosecutor was waiving
its assertion that Petitioner’s sentence be served consecutively to his probationary sentence.
Additionally, prior to imposing sentence, the trial court allowed Petitioner an opportunity to
reconsider his decision to plead no contest and gave him the option to withdraw his plea and
stand trial, but after consultation with counsel Petitioner declined the invitation and indicated his
desire to proceed with sentencing.
Finally, during the plea colloquy the trial court informed Petitioner that any appeal from
his conviction would be by application for leave to appeal rather than by right.
indicated his understanding, and though this exchange presented an opportunity to do so,
Petitioner did not ask whether this meant that his ability to raise claims of error on appeal would
Indeed, at no time in any of the pretrial hearings, the plea hearing, or the
sentencing hearing, did Petitioner ever assert or hint at any of the claimed errors he lists here.
The closest Petitioner came to making any objections was at the beginning of the sentencing
hearing where he claimed he had not received all the discovery materials.
In response, the trial
court gave Petitioner the option of withdrawing his plea, but Petitioner opted to continue with
Based on the thorough plea colloquy conducted by the trial court, the Michigan Court of
Appeals rejection of Petitioner’s first claim was not contrary to, and did not involve an
unreasonable application of, clearly established Supreme Court law.
B. Ineffective Assistance of Counsel
Petitioner next claims that he was denied the effective assistance of counsel when his trial
attorney advised him off the record that he would only receive a sentence of 13½ to 23½ years,
and that with good time he would only serve about 8 years.
Pet. at 7.
affidavits from two family members attesting to these representations.
Id. at 15-16.
The U.S. Supreme Court has set forth a two-part test for evaluating the claim of a habeas
petitioner who is challenging a plea on the ground that he was denied his Sixth Amendment right
to effective assistance of counsel.
First, the petitioner must establish that “counsel’s
representation fell below an objective standard of reasonableness.”
Hill v. Lockhart, 474 U.S.
52, 57-58 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).
demonstrate that counsel’s performance fell below this standard, a petitioner must overcome the
“strong presumption that counsel’s conduct falls within the wide range of reasonable
Strickland, 466 U.S. at 689.
Second, if the petitioner satisfies the first prong of this test, the petitioner must then
demonstrate that counsel’s performance resulted in prejudice — “that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded . . . and would have insisted
on going to trial.”
Hill, 474 U.S. at 59.
The Supreme Court has explained that “[in] many . . .
plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry engaged in by courts
reviewing ineffective-assistance challenges to convictions obtained through trial.”
Court has also emphasized that “these predictions of the outcome at a possible trial, where
necessary, should be made objectively, without regard for the ‘idiosyncracies of the particular
decisionmaker.’” Id. at 59-60 (quoting Strickland, 466 U.S. at 695).
Petitioner’s claim that his attorney made promises about the sentence he would receive
and the time he would actually serve in prison is contradicted by his sworn testimony at the plea
hearing that there were no promises made to him that were not placed on the record.
stated by the Sixth Circuit when faced with a challenge to a plea bargain based upon alleged
If we were to rely on [the petitioner’s] alleged subjective
impression rather than the record, we would be rendering the plea
colloquy process meaningless, for any convict who alleges that he
believed the plea bargain was different from that outlined in the
record could withdraw his plea, despite his own statements during
the plea colloquy . . . indicating the opposite. This we will not do,
for the plea colloquy process exists in part to prevent petitioners . .
. from making the precise claim that is today before us. “[W]here
the court has scrupulously followed the required procedure, the
defendant is bound by his statements in response to that court’s
Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999) (quoting Baker v. United States, 781 F.2d
85, 90 (6th Cir. 1986)).
Furthermore, Petitioner has failed to demonstrate that he was prejudiced by his counsel’s
alleged erroneous advice.
He has not demonstrated a reasonable probability that the
proceedings against him would have been more favorable. According to the records offered for
a factual basis at the plea hearing, DNA evidence indicated that Petitioner was the source of
genetic material recovered from the rape victim, Petitioner confessed to the crime, and Petitioner
used the victim’s credit card hours after committing the crime.
In light of the overwhelming
evidence of his guilt, there is not a reasonable probability that Petitioner would have opted to
stand trial and prevailed, had his attorney not given him the alleged erroneous sentencing advice.
Accordingly, Petitioner’s ineffective assistance of counsel claim is belied by his sworn
testimony taken during the plea hearing that contradict his allegations, and he completely failed
to demonstrate that he was prejudiced by his counsel’s alleged erroneous advice.
was therefore reasonably rejected by the state courts.
As neither of Petitioner’s claims merit relief, the petition will be denied.
C. Certificate of Appealability and Leave to Proceed In Forma Pauperis on Appeal
Before Petitioner may appeal this Court’s dispositive decision, a certificate of
appealability must issue.
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).
When a court rejects a habeas claim on the
merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable
jurists would find the district court’s assessment of the constitutional claim debatable or wrong.
See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
“A petitioner satisfies this standard by
demonstrating that . . . jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327.
In applying that standard, a
district court may not conduct a full merits review, but must limit its examination to a threshold
inquiry into the underlying merit of the petitioner’s claims.
Id. at 336-337.
“The district court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254; Castro v. United
States, 310 F.3d 900, 901 (6th Cir. 2002).
It is not reasonably debatable whether clearly established Supreme Court precedent
applies to the locking of the courtroom doors during opening statements and closing arguments.
The Court will, therefore, deny a certificate of appealability.
Although the Court denies a certificate of appealability to Petitioner, the standard for
granting an application for leave to proceed in forma pauperis is a lower standard than the standard
for certificates of appealability. Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002)
(citing United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997)). Whereas a certificate
of appealability may only be granted if a petitioner makes a substantial showing of the denial of a
constitutional right, a court may grant in forma pauperis status if it finds that an appeal is being
taken in good faith. Id. at 764-765; 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a). “Good faith”
requires a showing that the issues raised are not frivolous; it does not require a showing of
probable success on the merits. Foster, 208 F. Supp. 2d at 765. Although jurists of reason would
not debate the Court’s resolution of Petitioner’s claims, the issues are not frivolous; therefore, an
appeal could be taken in good faith and Petitioner may proceed in forma pauperis on appeal. Id. at
For the reasons stated above, the Court denies the petition (Dkt. 1), declines to issue a
certificate of appealability, and grants permission to proceed in forma pauperis on appeal.
Dated: July 17, 2017
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on July 17, 2017.
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