Hatten v. Knab

Filing 28

REPORT AND RECOMMENDATIONS re 26 - IT IS THEREFORE RECOMMENDED THAT:1. Hatten's Motion For Pauper Status (Doc. 26 ) be DENIED. 2. The case remain terminated on the docket of this Court. Objections to R&R due by 8/19/2013. Signed by Magistrate Judge Sharon L Ovington on 8/2/2013. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JUSTIN HATTEN,

:

Petitioner,

:
:

vs.
WARDEN, Chillicothe
Correctional Institution,

Case No. 3:11cv00324
District Judge Timothy S. Black
Chief Magistrate Judge Sharon L. Ovington

:
:

Respondent.
:

REPORT AND RECOMMENDATIONS1

This Court previously denied Justin Hatten’s Petition for Writ of Habeas Corpus,
declined to issue him a Certificate of Appealability, and denied him leave to proceed in forma
pauperis on appeal. (Doc. #20, PageID at 1724). Hatten has filed a Notice of Appeal. (Doc.
#27).
The case is presently before the Court upon Hatten’s pro se Motion For Pauperis (Doc.
#26), and the record as a whole. Hatten “move[s] to waive the payment of the appellate filing
fee under Fed. R. App. [P.] 24 because [he] is a pauper.” (Doc. #26). He swears under the
penalty of perjury that he cannot afford to pay the required appellate docket fees or “post a
bond for them.” Id. And he has attached his financial affidavit to his Motion.

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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendations.

Hatten may not proceed in forma pauperis on appeal “if the trial court certifies in
writing that [his appeal] is not taken in good faith.” 28 U.S.C. §1915(a)(3). The test under 28
U.S.C. §1915(a) for whether an appeal is taken in good faith is whether the litigant seeks
appellate review of any non-frivolous issue. Coppedge v. United States, 369 U.S. 438, 82 S.Ct.
917 (1962). An appellant’s good-faith subjective motivation for appealing is not relevant. The
issue instead is whether, viewed objectively, there is any non-frivolous issue to be litigated on
appeal. Id., 369 U.S. at 445, 82 S.Ct. at 921.
Hatten’s Motion For Pauper Status and attached financial affidavit establish that he is
unable to pay the $450.00 docketing fee required to pursue an appeal. He is therefore
financially eligible for in forma pauperis status. However, his Motion presents no new
contentions that indicate why his appeal is taken in good faith. As a result, and for the reasons
set forth in the prior Report and Recommendations as well as the Decision and Entry adopting
it (Doc. #s 12, 20), objectively viewed, there are no non-frivolous issues to be litigated on
appeal.
Accordingly, Hatten’s appeal is not taken in good faith.
IT IS THEREFORE RECOMMENDED THAT:
1.

Hatten’s Motion For Pauper Status (Doc. #26) be DENIED; and

2.

The case remain terminated on the docket of this Court.

August 2, 2013

s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after being
served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to seventeen days because this Report is being served by one of the methods of
service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendations are based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange
for the transcription of the record, or such portions of it as all parties may agree upon or the
Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A
party may respond to another party’s objections within fourteen days after being served with a
copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S.
140 (1985).

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