Evans v. U.S. Marshal Service

Filing 41

OPINION AND ORDER denying 39 Motion for Leave to Appeal in forma pauperis; denying 40 Motion for Certificate of Appealability. Signed by Judge James L. Graham on 11/17/2017. (ds)(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
WILLIAM H. EVANS, JR.,
Petitioner,

CASE NO. 2:17-CV-424
JUDGE JAMES L. GRAHAM
Magistrate Judge Chelsey M. Vascura

v.
U.S. MARSHAL SERVICE,
Respondent.
OPINION AND ORDER
On October 19, 2017, the Court issued an Order transferring this action to the United
States Court of Appeals for the Sixth Circuit as a second or successive petition. (ECF No. 36.)
Petitioner has filed a Notice of Appeal (ECF No. 38), as well as a motion for leave to appeal in
forma pauperis and a motion for a certificate of appealability. For the reasons that follow, the
motions are DENIED.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal would not be taken
in good faith.

Therefore, Petitioner is DENIED leave to appeal in forma pauperis.

See

Fed.R.App.P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
“In contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas
corpus in federal court holds no automatic right to appeal from an adverse decision by a district
court.” Jordan v. Fisher, –––U.S. ––––. ––––, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. §
2253(c)(1) (requiring a habeas petitioner to obtain a certificate of appealability in order to
appeal.) 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). 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.’ ” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)). When a claim has been
denied on procedural grounds, a certificate of appealability may issue if the petitioner establishes
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. Id.
This Court is not persuaded that reasonable jurists would debate whether the Court
appropriately transferred this action to the Sixth Circuit as successive. Therefore, the motion for
a certificate of appealability is DENIED.
With respect to any application by Petitioner to proceed on appeal in forma pauperis, the
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good
faith.

Therefore, the motion for leave to appeal in forma pauperis is DENIED.

Fed.R.App.P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
IT IS SO ORDERED.
Date: November 17, 2017
______s/James L. Graham_____
JAMES L. GRAHAM
United States District Judge

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