Fanaro v. Warden Hocking Correctional Facility

Filing 106

ORDER: The Court issues a Certificate of Appealability and Denies Petitioners request to proceed on appeal in forma pauperis. Signed by Judge Gregory L Frost on 1/30/14. (kn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CARL FANARO,
Case No. 2:10-cv-1002
JUDGE GREGORY L. FROST
Magistrate Judge Norah McCann King

Petitioner,
v.
FRANCISCO PINEDA, WARDEN,
Respondent.

ORDER
Petitioner asked that, should judgment be entered in favor of Respondent, the Court issue
a certificate of appealability and grant him leave to appeal in forma pauperis. (ECF No. 99, at
Page ID # 4921.) Final judgment in favor of respondent has now been entered. (ECF No. 105.)
When a claim has been denied on the merits, 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). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880, 893
(1983). Slack v. McDaniel, 529 U.S.473, 483 (2000). In order 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 . . . .
529 U.S. at 484.
Reasonable jurists could debate whether this Court properly resolved Petitioner’s claim
that he was denied the effective assistance of counsel because his attorney failed to counsel him
on the advisability of proceeding to trial and of the potential sentencing ramifications of doing
so. As to that claim, the Court ISSUES A CERTIFICATE OF APPEALABILITY.
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Petitioner also asks that he be permitted to proceed on appeal without prepayment of fees
or costs. However, this action was instituted with the assistance of counsel upon the payment of
the filing fee; Petitioner has not submitted a financial affidavit demonstrating that he is unable to
pay the fees and costs of an appeal. Petitioner’s request that he be permitted to proceed on appeal
in forma pauperis is therefore DENIED. This denial is without prejudice, however, to renewal
upon compliance with the requirements of Federal Rule of Appellate Procedure 24(a)(1).
IT IS SO ORDERED.
/s/ Gregory L. Frost____________
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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