Silverman v. Warden Pickaway Correctional Institution

Filing 36

ORDER denying 35 Motion for Certificate of Appealability; denying 32 Motion for Leave to Appeal in forma pauperis. Signed by Judge George C Smith on 11/30/09. (lvw1)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION PERRY R. SILVERMAN, Petitioner, v. TIMOTHY BRUNSMAN, Warden, Respondent. OPINION AND ORDER On August 19, 2009, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. This matter is before the Court on petitioner's September 18, 2009, notice of appeal, request for a certificate of appealability, and request to proceed in forma pauperis on appeal. For the reasons that follow, petitioner's request for a certificate of appealability, Doc. No. 35, is DENIED. His request to proceed in forma pauperis on appeal, Doc. No. 32, likewise is DENIED. In this habeas corpus petition, petitioner asserts: 1. Petitioner's convictions violated his Fourteenth Amendment right to due process of law because they were not supported by sufficient evidence to enable a rational trier of fact to find guilt beyond a reasonable doubt. 2. The trial court violated the petitioner's Fourteenth Amendment right to due process of law by admitting prejudicial and inadmissible lay opinion testimony and unauthenticated documents into evidence that deprived the petitioner of a fair trial. 3. The petitioner was deprived of his Sixth Amendment rights CASE NO. 2:07-cv-1233 JUDGE SMITH MAGISTRATE JUDGE ABEL

by the ineffective assistance of counsel, and by the trial court's refusal to grant petitioner a continuance so that he could replace said counsel. 4. The trial court imposed non-minimum and consecutive prison sentences upon the petitioner that violated his Fourteenth Amendment right to due process of law and violated Eighth Amendment prohibitions against cruel and unusual punishment. 5. The petitioner's Fourteenth Amendment right to equal protection of the law has been violated by the statutory classifications under which judicial release eligibility is granted to offenders serving non-mandatory prison terms of ten (10) years or less, but is denied to offenders serving non-mandatory prison terms of more than ten (10) years. On August 19, 2009, the Court dismissed portions of claims two, three, four, and five as procedurally defaulted, and the remainder of petitioner's claims on the merits. When a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. §2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529 U.S. 473 (2000). To make a substantial showing of the denial of a constitutional right, a petitioner 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.'" Barefoot, 463 U.S., at 893, and n.4 . . . . Id. Where the Court dismisses a claim on procedural grounds, a certificate of appealability should issue when the prisoner shows, at least, that jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, supra, 529 U.S. at 1595. Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id. Petitioner has failed to establish that either that reasonable jurists would debate whether petitioner's claims should have been resolved differently or whether the Court was correct in its dismissal of petitioner's claims as procedurally defaulted. Petitioner's request for a certificate of appealability therefore is DENIED. Petitioner's request for a certificate of appealability likewise is DENIED. Pursuant to 28 U.S.C. §1915(a)(3), an appeal may not be taken in forma pauperis if the appeal is not taken in good faith. Federal Rule of Appellate Procedure 24 also provides: A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless: (A) the district court--before or after the notice of appeal is filed-- certifies that the appeal is not taken in good faith[.] Fed. R. App. P. 24(a)(3)(A). In addressing this standard, another court has explained: The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). An appeal is not taken in good faith if the issue presented is frivolous. Id. Accordingly, it would be inconsistent for a

district court to determine that a complaint is too frivolous to be served, yet has sufficient merit to support an appeal in forma pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n. 1 (2d Cir.1983). Frazier v. Hesson, 40 F.Supp.2d 957, 967 (W.D. Tenn. 1999). However, [t]he standard governing the issuance of a certificate of appealability is more demanding than the standard for determining whether an appeal is in good faith. U.S. v. Cahill-Masching, 2002 WL 15701, * 3 (N.D.Ill. Jan. 4, 2002). "[T]o determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 631 (7th Cir.2000). Penny v. Booker, No. 05-70147, 2006 WL 2008523 (E.D. Michigan, July 17, 2006). The Court certifies pursuant to 28 U.S.C. §1915(a)(3) that the appeal is not in good faith. Therefore, petitioner's request to proceed in forma pauperis on appeal, Doc. No. 32, as well as his request for a certificate of appealability, Doc. No. 35, are DENIED. IT IS SO ORDERED. /s/ George C. Smith GEORGE C. SMITH United States District Judge