Gregory v. Young et al

Filing 14

ORDER denying [] Motion for Certificate of Appealability; denying as moot 11 Motion to Appoint Counsel ; granting 12 Motion for Leave to Proceed in forma pauperis. Signed by U.S. District Judge Karen E. Schreier on 2/25/2014. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
GARLAND RAY GREGORY, JR.,
Petitioner,
vs.
DARIN YOUNG, Warden; and
ATTORNEY GENERAL OF THE
STATE OF SOUTH DAKOTA,
Respondents.

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Civ. 13-4069-KES

ORDER DENYING CERTIFICATE
OF APPEALABILITY, GRANTING
LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL, AND
DENYING MOTION TO
APPOINT COUNSEL

Petitioner, Garland Ray Gregory, Jr., filed a pro se motion for relief
pursuant to Fed. R. Civ. P. 60(b) on June 25, 2013. Docket 1. That same day,
the Clerk of Court wrote Gregory a letter indicating that his motion would be
construed as a petition for relief under 28 U.S.C. § 2254. Docket 4. Gregory
promptly notified the court that he did not wish to proceed with a habeas
petition. Docket 5. Gregory’s petition was then referred to United States
Magistrate Judge John E. Simko pursuant to 28 U.S.C. § 636(b)(1)(B) for
purposes of conducting any necessary hearings and issuing a report and
recommendation for the disposition of Gregory’s case.
On July 8, 2013, Magistrate Judge Simko recommended that the court
deny Gregory’s motion to change case type (Docket 5) and deny Gregory’s
§ 2254 petition because it represented a second or successive § 2254 petition,
which Gregory had not received permission to file. Docket 6. After considering
Gregory’s objections (Docket 7), the court adopted Magistrate Judge Simko’s
Report and Recommendation and denied Gregory’s § 2254 petition (Docket 8).

Gregory now requests a certificate of appealability (Docket 10) and moves to
proceed in forma pauperis on appeal (Docket 12).
I.

The court denies Gregory’s request for a certificate of
appealability.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), the right to appeal the denial of a § 2254 petition is governed by
28 U.S.C. § 2253(c), which reads as follows:
(c)(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals
from—
(A) the final order in a habeas corpus proceeding
in which the detention complained of arises out of
process issued by a State court;
...
(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a substantial
showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing
required by paragraph (2).
To make a substantial showing of the denial of a constitutional right, the
applicant must demonstrate “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) (internal quotation marks and citation omitted). Notably, however,
“[w]here a plain procedural bar is present and the district court is correct to
invoke it to dispose of the case, a reasonable jurist could not conclude either

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that the district court erred in dismissing the petition or that the petitioner
should be allowed to proceed further.” Id. “In such a circumstance, no appeal
would be warranted.” Id.
In the instant case, the court dismissed Gregory’s § 2254 petition as a
second or successive § 2254 petition. Because Gregory had not received
permission from the Eighth Circuit Court of Appeals to file a successive
§ 2254 petition, the district court was without jurisdiction to consider the
matters presented within the petition. The court therefore finds that since a
plain procedural bar is present, no reasonable jurist could conclude either
that the court erred in dismissing the petition or that Gregory should be
allowed to proceed further. Accordingly, the court denies Gregory’s request for
a certificate of appealability.
II.

The court grants Gregory’s motion for leave to proceed in forma
pauperis on appeal.
Under the Prison Litigation Reform Act (PLRA), a prisoner who “files an

appeal in forma pauperis . . . [is] required to pay the full amount of a filing
fee.” 28 U.S.C. § 1915(b)(1). Nonetheless, the Eighth Circuit has held that the
filing-fee provisions of the PLRA do not apply to habeas corpus actions.
Malave v. Hedrick, 271 F.3d 1139, 1140 (8th Cir. 2001). Therefore, to
determine whether a habeas petitioner qualifies for in forma pauperis status,
the court need only assess (1) whether the petitioner can afford to pay the full

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filing fee, and (2) whether the petitioner’s appeal is taken in “good faith.”1 28
U.S.C. § 1915(a)(1), (3).
In the instant case, Gregory has provided the court with a report of his
prisoner trust account, which reflects average monthly deposits of $85.46 and
an average monthly balance of $163.74. Docket 13. Based on Gregory’s
financial information and concluding that his appeal is taken in good faith,
the court finds that Gregory is entitled to proceed in forma pauperis on
appeal. Accordingly, it is
ORDERED that Gregory’s motion for certificate of appealability (Docket
10) is denied.
IT IS FURTHER ORDERED that Gregory’s motion for leave to proceed in
forma pauperis on appeal (Docket 12) is granted. The $455 appellate filing fee
is waived.
IT IS FURTHER ORDERED that Gregory’s motion to appoint counsel
(Docket 11) is denied as moot because the Eighth Circuit Court of Appeals
will rule on that motion.
Dated February 25, 2014.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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“To determine whether an appeal is taken in good faith, the Court must
decide whether the claims to be decided are factually or legally frivolous.”
Zuniga-Hernandez v. Reese, No. Civ. 02-718, 2003 WL 23746157, at *1 (D.
Minn. Jan. 14, 2003) (citing Coppedge v. United States, 369 U.S. 438, 444–45
(1962)).
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