Harper v. Warden Belmont Correctional Institution

Filing 28

ORDER denying 26 Motion for Leave to Appeal in forma pauperis; denying 27 Motion for Certificate of Appealability. Signed by Judge Gregory L. Frost on 1/29/15. (kn)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HENRY N. HARPER,
CASE NO. 14-CV-01220
JUDGE GREGORY L. FROST
MAGISTRATE JUDGE KEMP

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

OPINION AND ORDER
On December 18, 2014, this Court issued an Order (ECF 18) denying Petitioner’s Motion
for Release (ECF 8). This matter is before the Court on Petitioner’s January 21, 2015, Motion
for a Certificate of Appealability and Motion to Proceed in forma pauperis on Appeal (ECF 26,
27).1 For the reasons that follow, Petitioner’s Motion for a Certificate of Appealability and
Motion to Proceed in forma pauperis on Appeal (ECF 26, 27), are DENIED.
Petitioner appeals this Court’s denial of his Motion for Release pending resolution of this
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF 8). In support of his
Motion for a Certificate of Appealability, Petitioner again argues that he is actually innocent,
particularly in view of the recantation of the alleged victim, that the evidence is insufficient to
sustain his convictions, and that exceptional circumstances exist justifying his release. Finding
these arguments to be unpersuasive, on December 18, 2014, the Court denied Petitioner’s Motion
for Release.
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Petitioner indicates that he provided his Notice of Appeal to prison officials for mailing on January 10, 2015,
within thirty days of entry of Order he appeals, as required by Rule 4(a)(1)(A). See Notice of Appeal, ECF 25,
PageID# 2251; Motion for a Certificate of Appealability, ECF 27,PageID# 2270. He thereby timely filed the Notice
of Appeal under the prison mailbox rule, which requires that the Notice of Appeal be deemed to have been filed on
the date that it is submitted to prison officials for mailing. See, e.g., Keeling v. Warden, Lebanon Correctional Inst.,
673 F.3d 452, 456 (6th Cir. 2012) (citing Cook v. Stegall, 295 F.3d 517. 521 (6th Cir. 2002) (Houston v. Lack, 487
U.S. 266, 273, (1988)).

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“[T]he denial or granting of bail is appealable under the collateral order doctrine of
Cohen v. Beneficial Industrial Loan Co., 337 U.S. 541 (1949). Lee v. Jabe, 989 F.2d 869, 870
(6th Cir. 1992)(citing Dotson v. Clark, 900 F.2d 77 (6th Cir. 1990). “[A] certificate of probable
cause is a prerequisite to appealing the denial of a bail motion in a habeas proceeding. . . . The
same considerations that dictate a certificate of probable cause be required before appealing the
denial of a habeas petition apply with equal force to an attempt to appeal an interlocutory and
collateral order.” Id. at 871.
That being the case, where, as here, 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, 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).
This Court is not persuaded that Petitioner meets this standard with respect to his Motion
for Release pending resolution of this action.

Petitioner’s Motion for Certificate of

Appealability, ECF 27, therefore is DENIED.
Petitioner also seeks to proceed in forma pauperis on appeal. Under Rule 24(a)(3) of the
Federal Rules of Appellate Procedure, a party who was permitted to proceed in forma pauperis
in the district court may proceed on appeal in forma pauperis unless the Court certifies that the
appeal is not taken in good faith. See also 28 U.S.C.1915(a)(3). As this Court previously 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, 1050 n. 1 (2d Cir. 1983).
Jordan v. Sheets, No. 2:10-cv-34, 2012 WL 4442740, at *2 (S.D. Ohio Sept. 25,
2012)(quoting Frazier v. Hesson, 40 F.Supp.2d 957, 967 (W.D.Tenn. 1999). However, “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.” Penny v. Booker, No. 05–70147,
2006 WL 2008523, at *1 (E.D.Mich. July 17, 2006)(quoting United States v. Cahill–Masching,
2002 WL 15701, * 3 (N.DI ll.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.” Id.
(quoting Walker v. O'Brien, 216 F.3d 626, 631 (7th Cir. 2000)).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal is not in good faith.
Petitioner’s Motion for a Certificate of Appealability and Motion to Proceed in forma
pauperis on Appeal (ECF 26, 27), are DENIED.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
United States District Judge

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