Davis v. Akins et al

Filing 83

ORDER denying 81 plaintiff's motion re-urging her request for a transcript and setting out additional information as to the matter she pursues on appeal...plaintiff has not shown the existence of a "substantial question" as to her appeal within the meaning of § 753. See order for further specifics. Signed by Honorable Joe Heaton on 08/05/2011. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JUANITA DAVIS,
Plaintiff,
vs.
AKIN'S, ET AL.,
Defendants.

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NO. CIV-10-0743-HE

ORDER
Plaintiff Juanita Davis, proceeding pro se, previously filed a request for in forma
pauperis status [Doc. #73], which the court granted [Doc. #76], and a motion for a transcript
at government expense [Doc. #77], which the court denied [Doc. #78]. In the latter order,
the court noted that plaintiff had not shown compliance with 28 U.S.C. § 753(f) which
requires, in order to qualify for a free trial transcript in a non-criminal, non-habeas context,
a showing that “the appeal is not frivolous (but presents a substantial question).” The order
also noted that plaintiff could re-urge her request either in this court or with the Court of
Appeals. Plaintiff did so, filing a motion for a trial transcript at public expense with the
Court of Appeals. That request was denied. [Doc. #79]. Plaintiff has now filed a further
motion re-urging her request for a transcript and setting out additional information as to the
matters she wishes to pursue on appeal. [Doc. #81].
Plaintiff’s new motion indicates two broad grounds that she seeks to pursue in her
appeal. First, she contends her trial counsel was ineffective in various ways. Second, she
contends that a witness at the trial did not testify truthfully. The motion provides additional
detail as to what she intends in these general areas.

As noted above, the standard in these circumstances1 is that the appellant show that
her appeal is not frivolous and that it presents a substantial question. The statutory language
indicates these are two separate questions and the appellant must make a showing as to both.
See Buck v. Brackett, 181 Fed. Appx 712, 715 (10th Cir. 2006) (“In civil cases such as this,
an appellant proceeding in forma pauperis may obtain a transcript at government expense
pursuant to 28 U.S.C. § 753(f) . . . [if] ‘the appeal is not frivolous (but presents a substantial
question).’”); see also Bloomer v. United Parcel Service Inc., 94 Fed. Appx. 820, 826 (10th
Cir. 2004) (“Appellants proceeding in forma pauperis are not entitled to a free trial transcript
unless their appeal presents a substantial question.”). Here, the court concludes plaintiff has
made a sufficient showing as to the first element—that her appeal is non-frivolous. She is
plainly very serious about pursuing an appeal, feels strongly about the propriety of the
verdict rendered at the trial, and has done nothing to suggest bad faith of any sort in pursuing
her position. However, the “substantial question” requirement is a different matter.
Neither of the matters identified by plaintiff in her motion suggest a substantial
question within the meaning of § 753. Concerns that her counsel should have presented more
or different evidence, or that he should have presented the evidence in a particular way or
questioned a witness in a particular way, do not state even an arguable basis for a successful
appeal. An appellate court does not evaluate evidence that might have been, but was not,
admitted. See United States v. Mergerson, 4 F.3d 337, 348 n. 14 (5th Cir. 1993) (“However,

1

This is not a criminal case nor is it a case seeking habeas relief. Somewhat different
standards apply in those circumstances. See 28 U.S.C. § 753(f).

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because [defendant]’s trial attorney’s testimony was not admitted into the evidence before
the jury, we cannot consider it for purposes of our sufficiency review.”). Similarly, an
appellate court does not evaluate the effectiveness of a party’s counsel. This is not a habeas
corpus case, where the claimed ineffective assistance of counsel often has significance for
the disposition of the case, but is, rather, a regular civil case decided on the basis of the
evidence actually presented to the jury or at least offered. See Nelson v. Boeing Co., 446
F.3d 1118, 1119 (10th Cir. 2006) (“The general rule in civil cases is that the ineffective
assistance of counsel is not a basis for appeal or retrial.’”); cf id. at 1120 (recognizing that
“the only context in which courts have recognized a constitutional right to effective
assistance of counsel in civil litigation is in immigration cases”).2
Similarly, the suggestion that a witness lied on the witness stand is not an arguable
basis for an appeal. The evaluation of a witness’ credibility is solely for the jury and an
appellate court will not re-weigh the evidence presented at trial in an effort to determine
whether a witness lied. See e.g., United States v. McKissick, 204 F.3d 1282, 1289-90 (10th
Cir. 2000) (“It is for the jury, as the fact finder, to resolve conflicting testimony, weigh the
evidence, and draw inferences from the facts presented.”).
As plaintiff has not shown the existence of a “substantial question” as to her appeal
within the meaning of § 753, her renewed motion for provision of a trial transcript at public

2

If a counsel’s performance is below acceptable professional standards and leads to adverse
effects for the client in a civil case, the client’s remedy is a legal malpractice lawsuit rather than a
reversal for ineffective assistance of counsel. Nelson, 446 F.3d. at 1119.

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expense [Doc. #81] is DENIED.
IT IS SO ORDERED.
Dated this 5th day of August, 2011.

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