Moore v. Smith

Filing 9

ORDER Denying 5 MOTION for Certificate of Appealability, and 8 Application to Proceed In Forma Pauperis filed by Leonarr Moore. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LEONARR T. MOORE,
Petitioner,
v.

CASE NO. 5:11-cv-14319
HONORABLE JOHN CORBETT O’MEARA

WILLIE O. SMITH,
Respondent.
_________________________/
ORDER DENYING PETITIONER’S MOTION
FOR A CERTIFICATE OF APPEALABILITY
AND APPLICATION TO PROCEED
IN FORMA PAUPERIS ON APPEAL
Petitioner Leonarr T. Moore has appealed the Court’s order dismissing his
habeas corpus petition. Currently pending before this Court are Petitioner’s motion for a
certificate of appealability and his application to proceed in forma pauperis on appeal.
“[A] prisoner seeking post-conviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court’s denial or dismissal of the petition. Instead,
[the] petitioner must first seek and obtain a [certificate of appealability.]” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). 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).
Petitioner alleged in his habeas petition that he was convicted on the basis of
evidence obtained through an unconstitutional search and seizure. The Court
summarily dismissed the petition because Fourth Amendment claims are not cognizable

on habeas corpus review if the petitioner had a full and fair opportunity to litigate the
claim in state court. Stone v. Powell, 428 U.S. 465, 482 (1976). Petitioner had a full
and fair opportunity to raise his claim in the trial court, in the Michigan Court of Appeals,
and in the Michigan Supreme Court. Consequently, reasonable jurists would not “find it
debatable whether the petition states a valid claim of the denial of a constitutional right”
or whether this Court’s procedural ruling was correct. Slack v. McDaniel, 529 U.S. 473,
484 (2000).
Petitioner’s motion for a certificate of appealability [dkt. #5] is DENIED. The
application to proceed in forma pauperis on appeal [dkt. #8] likewise is DENIED, as an
appeal could not be taken in good faith. 28 U.S.C. § 1915(a)(3).

s/John Corbett O’Meara
United States District Judge
Date: March 2, 2012

I hereby certify that a copy of the foregoing document was served upon Petitioner
on this date, March 2, 2012, by first-class U.S. mail.

s/William Barkholz
Case Manager

2