Anes #540573 v. Campbell

Filing 25

ORDER TO PROCEED IN FORMA PAUPERIS ON APPEAL: petitioner may proceed in forma pauperis without payment of an appeal fee; certificate of appealability denied; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, mkb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
DANNON ANES,

Case No. 1:16-cv-233
Petitioner,

Honorable Robert J. Jonker

v.
SHERMAN CAMPBELL,
Respondent.

____________________________/
ORDER REGARDING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

AND DENYING CERTIFICATE OF APPEALABILITY
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.
On September 3, 2017, the Court entered a judgment denying the petition. (ECF No. 20.)
Petitioner now has filed a notice of appeal. Petitioner is seeking a certificate of appealability
(taken from the notice of appeal) as well as leave to proceed on appeal in forma pauperis (ECF
No. 24).
Federal Rule of Appellate Procedure 3(e) provides that the appellant must pay all
required fees at the time a notice of appeal is filed with the district court. The docketing fee for a
case on appeal is $500.00.

See 28 U.S.C. § 1913; 6 CIR. I.O.P. 3; Court of Appeals

Miscellaneous Fee Schedule § 1 (Dec. 1, 2013). In addition, under 28 U.S.C. § 1917, a $5.00
filing fee must be paid to the district court. Petitioner has failed to pay the required fees.
A prisoner who is unable to pay the required filing fees may seek leave to appeal
in a § 2254 action pursuant to Rule 24(a) of the Federal Rules of Appellate Procedure. Kincade
v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997). Petitioner has complied with Rule 24(a), which

requires him to file a motion for leave to proceed in forma pauperis and an affidavit showing his
inability to pay the required fees (as prescribed by Form 4 of the Appendix of Forms), his belief
that he is entitled to redress, and a statement of the issue he intends to present on appeal. The
documents show that Petitioner is unable to pay the filing and docket fees required for an appeal.
In light of his indigence, Petitioner may proceed in forma pauperis on appeal without prepaying or giving security for fees and costs. FED. R. APP. P. 24(a)(2). Therefore, Petitioner is
not required to pay the $505.00 fee for filing an appeal. See Kincade, 117 F.3d at 951 (holding
that 28 U.S.C. § 1915(b) provides that the fee provisions of the Prison Litigation Reform Act of
1995 do not apply to an appeal from a decision on an application for habeas relief).1
Under 28 U.S.C. § 2253(c)(1), a petitioner may not appeal in a habeas case unless
a circuit justice or judge issues a certificate of appealability. Rule 22 of the Federal Rules of
Appellate Procedure makes clear that district judges have the authority to issue a certificate of
appealability. FED. R. APP. P. 22(b). The filing of a notice of appeal that does not specify the
issues that petitioner seeks to have reviewed on appeal will be deemed a request for review of all
issues. In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997) (Admin. Ord.).
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability
should be granted. A certificate should issue if a petitioner has demonstrated a “substantial
showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standard a petitioner
must meet depends on whether the issues raised in the petition were denied on the merits or on
procedural grounds.
Here, the Court denied the petition on the merits. To warrant a grant of the
certificate, “[t]he petitioner must demonstrate that reasonable jurists would find the district
1

This Court notes that pursuant to 28 U.S.C. § 2254 and Rule 24(a)(3) of the Federal Rules of Appellate Procedure, it
is not required to address whether the instant appeal is taken in good faith because Petitioner did not proceed in forma
pauperis in the district court. See 28 U.S.C. § 2254; FED. R. APP. P. 24(a)(3).

court’s assessment of the constitutional claims debatable or wrong.” 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 v. Cockrell, 537 U.S. 322, 326 (2003). In applying this standard, the Court may not
conduct a full merits review, but must limit its examination to a threshold inquiry into the
underlying merit of petitioner’s claims. Id.
Applying this standard, this Court finds no basis for issuance of a certificate of
appealability. The Court has already rejected Petitioner’s claims of constitutional error under the
standards set forth in the Antiterrorism and Effective Death Penalty Act. Petitioner has not
pointed to any flaw in the Court’s reasoning or any issue of fact or law overlooked in the
adjudication of his petition. The Court finds that reasonable jurists could not conclude that this
Court’s dismissal of Petitioner’s claims was debatable or wrong, and therefore, the Court will
deny Petitioner a certificate of appealability.
Accordingly,
IT IS ORDERED that Petitioner’s motion for certificate of appealability, taken
from the notice of appeal (ECF No. 21), is DENIED.
IT IS FURTHER ORDERED that Petitioner’s motion for leave to proceed in
forma pauperis on appeal (ECF No. 24) is GRANTED.

/s/ Robert J. Jonker
Robert J. Jonker
Chief United States District Judge

Dated: September 14, 2017

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