Harper v. Warden Belmont Correctional Institution

Filing 45

ORDER granting 42 Motion for Leave to Appeal in forma pauperis; granting 44 Motion for Certificate of Appealability. Signed by Judge Gregory L. Frost on 9/9/15. (kn)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THEUNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HENRY N. HARPER,
CASE NO. 2:14-CV-01220
JUDGE GREGORY L. FROST
MAGISTRATE JUDGE KEMP

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

OPINION AND ORDER
On July 27, 2015, Judgment was entered dismissing Petitioner’s Motion for Summary
Judgment and dismissing this case. (ECF No. 41.) This matter now is before the Court on
Petitioner’s Motion for Certificate of Appealability and Motion for Leave to Appeal in forma
pauperis. (ECF Nos. 42, 44.) For the reasons that follow, Petitioner’s Motion for Certificate of
Appealability and Motion for Leave to Appeal in forma pauperis. (ECF Nos. 42, 44) are
GRANTED.
The Court denied Petitioner’s Motion for Summary Judgment and dismissed this case as
barred by the one-year statute of limitations provided for in 28 U.S.C. § 2244(d). Petitioner
requests the Court to issue a certificate of appealability. 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, 529 U.S. 473, 484 (2000).
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
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claims and one directed at the district court's procedural holding.” Id. at 485. The court may first
“resolve the issue whose answer is more apparent from the record and arguments.” Id.
The Court concludes that Petitioner has demonstrated that reasonable jurists would
debate whether the petition states a valid claim of the denial of a constitutional right and whether
the Court was correct in dismissing the case as barred by the one-year statute of limitations. The
Court therefore certifies the following issue for appeal:
Does the one-year statute of limitations of 28 U.S.C. § 2244(d) bar
review of the habeas corpus petition?
Petitioner also has filed a request to proceed in forma pauperis on appeal. Because the
filing fee assessment procedures prescribed by the Prison Litigation Reform Act are not
applicable to appeals taken in habeas corpus matters, see Kincade v. Sparkman, 117 F.3d 949
(6th Cir. 1997), the issue is simply whether Petitioner can afford the $455.00 filing fee for an
appeal. Upon review of his financial affidavit, the Court concludes that he cannot. The Court
therefore GRANTS Petitioner's request for leave to proceed in forma pauperis on appeal.
Petitioner’s Motion for Certificate of Appealability and Motion for Leave to Appeal in
forma pauperis. (ECF Nos. 42, 44) are GRANTED.
IT IS SO ORDERED.

/s/ GREGORY L. FROST
GREGORY L. FROST
United States District Judge

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