Morrell v. McCullick

Filing 47

OPINION AND ORDER Granting re 44 Application to Proceed Without Prepaying Fees or Costs on Appeal. Signed by District Judge George Caram Steeh. (BSau)

Case 2:17-cv-10961-GCS-DRG ECF No. 47 filed 05/04/20

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONALD MORRELL,
Petitioner,
v.

Civil No. 2:17-CV-10961
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

DEWAYNE BURTON,
Respondent.
______________________/
OPINION AND ORDER GRANTING THE APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES AND COSTS ON APPEAL
On January 6, 2020, this Court issued an opinion and order granting
petitioner a writ of habeas corpus on his claim that the judge had violated
his Sixth Amendment rights by using factors that had not been submitted to
the jury to score his sentencing guidelines. This Court denied petitioner
habeas relief on his remaining claims and denied him a certificate of
appealability. See Morrell v. Burton, No. 2:17-CV-10961, 2020 WL 59700
(E.D. Mich. Jan. 6, 2020). Petitioner filed a Notice of Appeal with the Sixth
Circuit regarding the claims that had been denied. Pending before the
Court is petitioner’s application to proceed without prepayment of fees and
costs on appeal.

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Although the Court has denied a certificate of appealability to
petitioner, the standard for granting an application for leave to proceed in
forma pauperis (IFP) is a lower standard than the standard for certificates
of appealability. See Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D.
Mich. 2002). Whereas a certificate of appealability may only be granted if
petitioner makes a substantial showing of the denial of a constitutional
right, a court may grant IFP status if it finds that an appeal is being taken in
good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.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.
Based upon the foregoing, IT IS HEREBY ORDERED that the
“Application to Proceed Without Prepaying Fees or Costs in Appeal” (ECF
No. 44) is GRANTED.
Dated: May 4, 2020
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 4, 2020, by electronic and/or ordinary mail and also on
Ronald Morrell #955782, Richard A. Handlon Correctional
Facility, 1728 Bluewater Highway, Ionia, MI 48846.
s/Brianna Sauve
Deputy Clerk

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