Parker v. Martin et al

Filing 76

ORDER denying 73 Petitioners Request for Certificate ofAppealability; denying 74 Motion for Leave to Proceed in forma pauperis. Petitioner is directed to pay the $505.00 appellate filing fee to theClerk of this Court within 30 days from the date of this Order. Signed by Chief Judge Timothy D. DeGiusti on 3/14/2023. (mb)

Case 5:13-cv-01365-D Document 76 Filed 03/14/23 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ALVIN PARKER,
Petitioner,
v.
TERRY MARTIN, Warden,
Respondent.

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Case No. CIV-13-1365-D

ORDER
This matter comes before the Court on Petitioner’s Request for Certificate of
Appealability [Doc. No. 73] and Application for Leave to Proceed In Forma Pauperis [Doc.
No. 74].

These filings concern Petitioner’s appeal from the Order of February 15, 2023,

which denied a motion under Fed. R. Civ. P. 60(b)(3) and (d)(3) for relief from the Order
and Judgment of May 8, 2014.

See Notice of Appeal [Doc. No. 72].

To obtain a certificate of appealability (COA) under 28 U.S.C. § 2253(c)(1)(A),
Petitioner must make a substantial showing of the denial of a constitutional right. See 28
U.S.C. §2253(c)(2).

“A petitioner satisfies this standard by demonstrating that jurists of

reason could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see Slack v. McDaniel,

529 U.S. 473, 484 (2000).

Where a habeas proceeding is dismissed on procedural

grounds without reaching the merits of a prisoner’s claims, “a COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable whether the petition

Case 5:13-cv-01365-D Document 76 Filed 03/14/23 Page 2 of 3

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.”
529 U.S. at 484.

Slack,

Assuming Petitioner needs a COA to appeal the February 15 Order, the

Court finds upon consideration of Petitioner’s pro se filings (which are liberally construed)
and the case record that Petitioner has not made the requisite showing and thus his request
for a COA must be denied.
To proceed in forma pauperis on appeal under 28 U.S.C. § 1915, Petitioner must
show both that the appeal is taken in good faith and that he is unable to pay the required
fees. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997); 28 U.S.C.
§ 1915(a)(1) & (3).

A good faith appeal requires “the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on appeal.”
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991); McIntosh, 115 F.3d at 812.
Upon consideration, the Court finds that Petitioner lacks the financial resources to pay the
appellate filing fee but that the appeal is not taken in good faith. In the February 15 Order,
the Court found that Petitioner’s motion for relief from the 2014 judgment due to “fraud
on the court” was untimely and lacked merit. The Court finds that Petitioner has not
presented a nonfrivolous argument for an appeal of these rulings and thus he is not entitled
to proceed on appeal without prepayment of the filing fees.
IT IS THEREFORE ORDERED that Petitioner’s Request for Certificate of
Appealability [Doc. No. 73] and Application for Leave to Proceed In Forma Pauperis [Doc.

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No. 74] are DENIED. Petitioner is directed to pay the $505.00 appellate filing fee to the
Clerk of this Court within 30 days from the date of this Order.
IT IS SO ORDERED this 14th day of March, 2023.

. DeGIUSTI
Chief United States District Judge

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