Davic v. Warden, Trumbull Correctional Institution

Filing 16

ORDER denying 15 Motion for Leave to Appeal in forma pauperis. Signed by Judge Gregory L. Frost on 12/17/14. (kn)(This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) (kn).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRADFORD S. DAVIC,
CASE NO. 2:13-cv-00736
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth A. Preston Deavers

Petitioner,
v.
WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On November 12, 2014, 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 December 8, 2014 Notice of Appeal, which the Court construes as a request for a
certificate of appealability, and Motion for Leave to Appeal in forma pauperis. (ECF Nos 14,
15.) For the reasons that follow, Petitioner’s request for a certificate of appealability and Motion
for Leave to Appeal in forma pauperis on appeal are DENIED. (ECF Nos.14, 15.)
Petitioner challenges his convictions made pursuant to his guilty plea in the Franklin
County Court of Common Pleas on four counts of rape, one count of importuning, and one count
of gross sexual imposition. He asserts that his guilty plea was not knowing, intelligent, and
voluntary, that his sentence violates the Eighth Amendment and the Equal Protection Clause, and
that the state courts improperly imposed excessive bail. This Court dismissed the latter claims as
procedurally defaulted based on Petitioner’s failure to raise the claims on direct appeal. In view
of a record that contradicted Petitioner’s claim that he did not knowingly, intelligently, or
voluntarily enter his guilty plea, the Court dismissed such claim on the merits.

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When a claim has been denied on the merits, a certificate of appealability may issue only
if a 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, 484 (2000). To make a substantial showing of the denial of a
constitutional right, a petitioner must show “that reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further.’ ” Id. (citing Barefoot, 463 U.S. at 893,
and n.4).
When a claim has been denied on procedural grounds without reaching the merits of a
petitioner’s claim, a certificate of appealability should issue where the prisoner shows that
reasonable jurists could debate “whether the petition states a valid claim of the denial of a
constitutional right” and “whether the district court was correct in its procedural ruling.” Id. at
484.
The Court is not persuaded that Petitioner has met these standards here.
Petitioner also has filed a request to proceed in forma pauperis on appeal. 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(a)(3)(A) 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[.]
Id. In addressing this standard, another court has explained:

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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). Further,

“the 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, at *1 (E.D. Mich. July 17, 2006).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal is not in good faith.
Petitioner’s request for a certificate of appealability and Motion for Leave to Appeal in
forma pauperis on appeal are DENIED. (ECF Nos, 14.15.)
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
United States District Judge

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