Croom v. United States of America

Filing 17

ORDER DENYING & DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL 1 . Signed by Chief Judge J. Daniel Breen on 1/22/15. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.
LATONIA CROOM,
Defendant.

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No. 1:11-cv-01371-JDB-egb
Cr. No. 1:09-cr-10030-JDB-1

ORDER DENYING & DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255,
DENYING CERTIFICATE OF APPEALABILITY,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On December 7, 2011, Defendant, Latonia Croom filed a motion pursuant to 28 U.S.C.
§ 2255 alleging that trial counsel provided ineffective assistance during her sentencing hearing.
(Docket Entry (“D.E.”) 1.) On June 27, 2012, the Court directed the United States to respond to
the motion to vacate. (D.E. 2.) On November 15, 2012, the United States filed an answer
contending that Defendant’s motion is without merit. (D.E. 14.)
I.

PROCEDURAL HISTORY
On March 16, 2009, a federal grand jury returned a seven-count indictment against

Latonia Croom and Christopher Ivory. (Indictment, Criminal (“Cr.”) D.E. 1.) Croom was
charged with conspiracy to possess with intent to distribute and distribution of “Ecstasy”, 3,
4-Methylenedioxy Amphetamine, in violation of 21 U.S.C. § 846 (Count One); possession of
approximately 200 dosage units of “Ecstasy”, 3, 4-Methylenedioxy Amphetamine with intent to
distribute and distribution, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Two);

possession of approximately 200 dosage units of “Ecstasy”, 3, 4-Methylenedioxy Amphetamine
with intent to distribute and distribution, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2
(Count Three); possession of approximately 300 dosage units of “Ecstasy”, 3, 4-Methylenedioxy
Amphetamine with intent to distribute and distribution, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2 (Count Four); possession of approximately 300 dosage units of “Ecstasy”, 3, 4Methylenedioxy Amphetamine with intent to distribute and distribution, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2 (Count Five); and possession of firearms by a convicted felon
(Count Seven). (Id. at 1–7.) On July 21, 2009, Croom pled guilty to Counts One and Seven of the
indictment, pursuant to a written plea agreement. (Minute (“Min.”) Entry, Cr. D.E. 37.)
The plea agreement provided as follows:
Come now the parties herein, the defendant, LATONIA CROOM, being
represented by counsel, M. DIANNE SMOTHERS, and the United States being
represented by JERRY R. KITCHEN, Assistant United States Attorney for the
Western District of Tennessee and hereby agree as follows.
1.
The following plea agreement constitutes the entire agreement between
the parties and the parties agree that any issues not specifically addressed by this
plea agreement shall be resolved by the Court in accordance with the applicable
statutes, guidelines, rules and case law.
2.
The defendant agrees to plead guilty to Count’s [sic] 1 and 7 of the
Indictment in the above-styled cause. The defendant will pay the $200.00 special
assessment prior to sentencing.
3.
There is no agreement as to the appropriate criminal history of the
defendant.
4.
Should it be judged by the Government that the defendant has committed
or attempted to commit any additional crimes or has engaged in any conduct
constituting, obstructing or impeding justice within the meaning of United States
Sentencing Guidelines Section 3C1.1 or has failed to make any court appearances
in this case, from the date of the defendant’s signing of this plea agreement to the
date of the defendant’s sentencing, or if the defendant attempts to withdraw
his/her plea, the Government will be released from its obligations and would
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become free to argue for any sentence within statutory limits. Such a breach by
the defendant would not release the defendant from this plea of guilty.
5.
Based on the Defendant’s anticipated future assistance to the Government,
it is contemplated that the Government may recommend to the Court a departure
in the Defendant’s sentence pursuant to U.S. Sentencing Guidelines § 5K1.1 and
18 U.S.C. § 3553(e). This would be solely within the discretion of the
Government and is not part of the plea agreement. Substantial assistance is
understood by both parties to require good faith during all phases of the
cooperation period, including the Defendant’s provision of complete and truthful
information which assists in the investigation or prosecution of other individuals
and complete and truthful testimony at subsequent proceedings when needed. The
Defendant acknowledges that the Government’s determination of whether the
Defendant has cooperated fully and provided substantial assistance, and the
Government’s assessment of the value, truthfulness and completeness of the
Defendant’s assistance, is solely within the judgment and discretion of the
Government and shall be binding upon the Defendant.
6.
The parties agree that the Government will recommend the following: (1)
that the Defendant receive a three-level reduction for acceptance of responsibility
under U.S. Sentencing Guidelines § 3E1.1; and (2) that the Defendant be
sentenced at the lowest end of the applicable guideline range.
7.
The Defendant is aware that Title 18 United States Code, section 3742
affords him/her the right to appeal the sentence imposed in this case.
Acknowledging this, in exchange for the undertakings made by the United States
in this plea agreement, the defendant hereby waives all rights conferred by
Section 3742 to appeal any sentence imposed, including any restitution order, or
to appeal the manner in which the sentence was imposed, unless the sentence
exceeds the maximum permitted by statute or is the result of an upward departure
from the guideline range that the court establishes at sentencing. The defendant
further understands that nothing in this agreement shall affect the government’s
right and/or duty to appeal as set forth in Title 18, United States Code, Section
3742(b). However, if the United States appeals the defendant’s sentence pursuant
to Section 3742(b), the defendant shall be released from the above waiver of
appellate rights. By signing this agreement, the defendant acknowledges that
he/she has discussed the appeal waiver set forth in this agreement with his/her
attorney. The defendant further agrees, together with the United States, to request
that the district court enter a specific finding that the defendant’s waiver of his/her
right to appeal the sentence to be imposed in this case was knowing and
voluntary.
8.
The defendant understands and agrees that the Court will make the final
determination of facts as to any sentence and as to any mitigating or aggravating
factors concerning the sentence to be imposed. Adverse rulings by the Court shall
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not be grounds for the withdrawal of the Defendant’s guilty plea or to appeal any
sentence imposed. The Court is not limited to consideration of the facts and
events provided by the Government.
9.
There are no other agreements between and among the parties to this
agreement. The defendant enters this agreement freely, knowingly, and
voluntarily, and upon the advice of counsel.
(Plea Agreement, Cr. D.E. 38 at 1–4.)
On April 11, 2011, the Court sentenced Defendant to thirty-six months of imprisonment,
to be followed by a three-year term of supervised release. (Min. Entry, Cr. D.E. 101.) The
Court’s judgment was entered on April 12, 2011. (Judgment (“J.”), Cr. D.E. 102.) Croom did not
appeal.
On December 7, 2011, Defendant filed this motion to vacate alleging that her attorney,
Smothers, provided ineffective assistance by failing to investigate and challenge the two-point
enhancement to her Criminal History Category under United States Sentencing Guidelines
(“U.S.S.G.”) § 4A1.1(d) for a warrant outstanding at the time of Defendant’s arrest. (D.E. 1 at 1–
2.)
II.

STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress claiming
the right to be released upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.

“A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of

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fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (citation omitted) (internal quotation marks omitted).
“[A] § 2255 motion is not a substitute for a direct appeal.” Ray v. United States, 721 F.3d
758,

761

(6th

Cir.

2013)

(citation

omitted)

(internal

quotation

marks

omitted).

“[N]onconstitutional claims that could have been raised on appeal, but were not, may not be
asserted in collateral proceedings.” Stone v. Powell, 428 U.S. 465, 477 n.10 (1976) (citation
omitted). “Defendants must assert their claims in the ordinary course of trial and direct appeal.”
Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). This rule is not absolute:
If claims have been forfeited by virtue of ineffective assistance of counsel, then
relief under § 2255 would be available subject to the standard of Strickland v.
Washington, 466 U.S. 668[] (1984). In those rare instances where the defaulted
claim is of an error not ordinarily cognizable or constitutional error, but the error
is committed in a context that is so positively outrageous as to indicate a
“complete miscarriage of justice,” it seems to us that what is really being asserted
is a violation of due process.
Id.
Even constitutional claims that could have been raised on direct appeal, but were not, will
be barred by procedural default unless the defendant demonstrates cause and prejudice sufficient
to excuse his failure to raise these issues previously. El-Nobani v. United States, 287 F.3d 417,
420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 698–99
(6th Cir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v.
United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a defendant may
obtain review of a procedurally defaulted claim by demonstrating “that he is ‘actually innocent.’”
Bousley v. United States, 523 U.S. 614, 622 (1998) (citation omitted).
After a § 2255 motion is filed, it is reviewed by the Court and, “[i]f it plainly appears
from the motion, any attached exhibits, and the record of prior proceedings that the moving party
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is not entitled to relief, the judge must dismiss the motion . . . .” Rule 4(b), Rules Governing
Section 2255 Proceedings for the United States District Courts (“Section 2255 Rules”). “If the
motion is not dismissed, the judge must order the United States attorney to file an answer,
motion, or other response within a fixed time, or to take other action the judge may order.” Id.
The movant is entitled to reply to the Government’s response. Rule 5(d), Section 2255 Rules.
The Court may also direct the parties to provide additional information relating to the motion.
Rule 7(a), Section 2255 Rules.
“In reviewing a § 2255 motion in which a factual dispute arises, ‘the habeas court must
hold an evidentiary hearing to determine the truth of the petitioner’s claims.’” Valentine v.
United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d 474,
477 (6th Cir. 1999)). ‘“[N]o hearing is required if the petitioner's allegations cannot be accepted
as true because they are contradicted by the record, inherently incredible, or conclusions rather
than statements of fact.’” Id. (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir.
1999)). Where the judge considering the § 2255 motion also presided over the criminal case, the
judge may rely on his or her recollection of the prior case. Blanton v. United States, 94 F.3d 227,
235 (6th Cir. 1996); see also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977) (“[A] motion
under § 2255 is ordinarily presented to the judge who presided at the original conviction and
sentencing of the prisoner. In some cases, the judge’s recollection of the events at issue may
enable him summarily to dismiss a § 2255 motion . . . .”). Defendant has the burden of proving
that he is entitled to relief by a preponderance of the evidence. Pough v. United States, 442 F.3d
959, 964 (6th Cir. 2006).
A claim that ineffective assistance of counsel has deprived a defendant of his Sixth
Amendment right to counsel is controlled by the standards stated in Strickland v. Washington,
6

466 U.S. 668 (1984). To demonstrate deficient performance by counsel, a petitioner must
demonstrate that “counsel’s representation fell below an objective standard of reasonableness.”
Id. at 687–88.
A court considering a claim of ineffective assistance must apply a “strong
presumption” that counsel’s representation was within the “wide range” of
reasonable professional assistance. [Strickland, 466 U.S.] at 689 . . . . The
challenger’s burden is to show “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id.[] at 687 . . . .
Harrington v. Richter, 131 S. Ct. 770, 787 (2011).
To demonstrate prejudice, a prisoner must establish “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. 1 “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
It is not enough “to show that the errors had some conceivable effect on the
outcome of the proceeding.” [Strickland, 466 U.S.] at 693 . . . . Counsel’s errors
must be “so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Id.[] at 687 . . . .
Richter, 131 S. Ct. at 787–88; see also id. at 791–72 (“In assessing prejudice under Strickland,
the question is not whether a court can be certain counsel’s performance had no effect on the
outcome or whether it is possible a reasonable doubt might have been established if counsel
acted differently. . . . The likelihood of a different result must be substantial, not just
conceivable.” (citations omitted)); Wong v. Belmontes, 558 U.S. 15, 27 (2009) (per curiam)
(“But Strickland does not require the State to ‘rule out’ [a more favorable outcome] to prevail.

1

“[A] court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant . . . .” Strickland, 466 U.S. at 697. If a
reviewing court finds a lack of prejudice, it need not determine whether, in fact, counsel’s
performance was deficient. Id.
7

Rather, Strickland places the burden on the defendant, not the State, to show a ‘reasonable
probability’ that the result would have been different.” (citing Strickland, 466 U.S. at 694)).
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
356, 371 (2010).
An ineffective-assistance claim can function as a way to escape rules of waiver
and forfeiture and raise issues not presented at trial, and so the Strickland standard
must be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten
the integrity of the very adversary process the right to counsel is meant to serve.
Strickland, 466 U.S.[ at 689–90]. Even under de novo review, the standard for
judging counsel’s representation is a most deferential one. Unlike a later
reviewing court, the attorney observed the relevant proceedings, knew of
materials outside the record, and interacted with the client, with opposing counsel,
and with the judge. It is “all too tempting” to “second-guess counsel’s assistance
after conviction or adverse sentence.” Id.[ at 689]; see also Bell v. Cone, 535 U.S.
685, 702[] (2002); Lockhart v. Fretwell, 506 U.S. 364, 372[] (1993). The question
is whether an attorney’s representation amounted to incompetence under
“prevailing professional norms,” not whether it deviated from best practices or
most common custom. Strickland, 466 U.S.[ at 690].
Richter, 131 S. Ct. at 788.
III.

ANALYSIS
Croom contends that her attorney performed deficiently when she failed to investigate

and object to a two-point enhancement to her Criminal History Category under U.S.S.G.
§ 4A1.1(d) for a warrant outstanding at the time of her arrest. (D.E. 1 at 1–2.) Defendant’s
presentence report (“PSR”) states:
Pursuant to U.S.S.G. §[ ]4A1.1(d), if the defendant committed the instant offense
while under any criminal justice sentence, including probation, parole, supervised
release, imprisonment, work release, or escape status, add two (02) levels. The
defendant had an active probation warrant in Chester Court Case No. 12GS12003-1854, 1855 at the time of the instant offense. Two (02) points are therefore
added.
(PSR ¶ 56.)

8

On February 18, 2011, counsel filed written objections to the PSR, including an objection
to the calculation of Defendant’s Criminal History, stating:
Defendant states that although she did have this prior conviction she had no
knowledge of any probation violation warrant. It was dismissed after apparently
sitting inactive for years.
To the best of Defendant’s knowledge, the warrant concerned payment of
fines/costs and simply remained ‘live’ until those amounts were paid. It appears
there was never any court proceeding regarding the warrant, even though
Defendant had contact with that Court while this warrant was outstanding.
Defendant states that given the length of time this warrant apparently ‘sat’
inactive, to add the [two] additional criminal history point[s] which put[]
Defendant into a higher criminal history category is inequitable.
(Cr. D.E. 94 at 3.)
The probation officer responded to the objection in the Second Addendum to the PSR,
stating:
Pursuant to Application Note 4 of U.S.S.G. § 4A1.1, “A defendant who commits
the instant offense while a violation warrant from a prior sentence is outstanding
(e.g., a probation, parole, or supervised release violation warrant) shall be deemed
to be under a criminal justice sentence for the purposes of this provision if that
sentence is otherwise countable, even if that sentence would have expired absent
such warrant.” In this case, Probation Officer Holly Hemby filed a probation
violation on the defendant based on the defendant’s failure to pay court costs and
fines, the defendant’s failure to pay supervision fees, the defendant’s failure to
report to the case officer as instructed, and the defendant’s failure to provide proof
of employment. Judge Larry McKenzie signed the warrant on July 2, 2004. This
warrant remained active until it was dismissed on June 26, 2009. As such, the
defendant committed the instant offense while under a criminal justice sentence.
(D.E. 1-2 at 2.) Counsel did not raise the objection during the sentencing hearing.
The Court recollects that the drug quantity attributable to Defendant was 1000 dosages or
2750 grams of Ecstasy, resulting in a base offense level of twenty-six. The base offense level
was adjusted upward by two points because Defendant was a felon in possession of a firearm,
resulting in an adjusted offense level of twenty-eight. The Court granted a three-level reduction
9

for Defendant’s full acceptance of responsibility. The United States made no objection.
Defendant’s offense level became twenty-five. Pursuant to the terms of the negotiated plea
agreement, the United States moved for an additional three-level downward departure, to offense
level twenty-two, based on Defendant’s assistance in prosecuting co-conspirators. Croom’s
advisory sentencing guidelines range was forty-six to fifty-seven months in prison. The United
States also recommended that the Court impose a sentence at the low end of the guidelines range.
Counsel urged the Court for leniency in formulating Defendant’s sentence based on Defendant’s
exemplary conduct during her release pending sentencing and family concerns.
This Court believed that Defendant realized her bad choices, but had to consider the
prolonged nature of her criminal conduct. The Court granted an additional three-level downward
departure to offense level nineteen and imposed a term of thirty-six months in prison, to be
followed by three years of supervised release.
Defendant contends that, had counsel pursued the Criminal History objection, she would
have been eligible for a shorter sentence under the Sentencing Guidelines’ safety valve
provision. (D.E. 1 at 2.) The United States’ responds that her contention is meritless because the
outstanding warrant for Defendant’s arrest was valid. (D.E. 14 at 7.)
The Guidelines are clear that, if the defendant has an outstanding violation warrant, the
Court must add two points to her criminal history. See U.S.S.G. § 4A1.1(d). The probation
officer correctly cited to Application Note 4 to U.S.S.G. § 4A1.1. The sentencing court was
under no obligation to inquire into the warrant’s validity. United States v. Ramirez-Ramirez, 296
Fed. App’x 330, 331 (4th Cir. 2008) (per curiam); United States v. Davis, 313 F.3d 1300, 1305–
06 (11th Cir. 2002); United States v. Mateo, 271 F.3d 11, 16 (1st Cir. 2001); United States v.

10

Anderson, 184 F.3d 479, 481 (5th Cir. 1999) (per curiam); United States v. Elmore, 108 F.3d 23,
27–28 (3d Cir. 1997).
Likewise, Tennessee law provides Defendant with no support for her argument. A term
of probation “expires when the term of the sentence is completed.” Brooks v. Brooks, No.
M2007-00351-COA-R3-CV, 2009 WL 928283 at *9 n.15 (Tenn. Ct. App. 2009) (citing State v.
Ruiz, 204 S.W.3d 772 (Tenn. 2006); State v. Beard, 189 S.W.3d 730 (Tenn. Crim. App. 2005);
Kelly v. State, 61 S.W.3d 341 (Tenn. Crim. App. 2000)). The Tennessee Supreme Court
addressed the effect of a probation violation warrant on a term of probation in State v. Shaffer, 45
S.W.3d 553 (Tenn. 2001), stating such a warrant issued prior to the expiration of a probationary
period “commences the revocation proceedings and thereby interrupts the running of the
probationary period ‘until such time as the trial court [may] hear and determine the issue raised
by the [warrant].’” Shaffer, 45 S.W.3d at 555 (emphasis added) (quoting McGuire v. State, 292
S.W.2d 190, 193 (Tenn. 1956). Under Tennessee law, Defendant’s probationary period from her
2003 conviction did not expire until the warrant was dismissed on June 26, 2009. Her argument
is without merit. She remained under a prior criminal judgment within the ambit of Guideline
§ 4A1.1(d) during the commission of this federal offense.
Finally, the safety valve provision provided in U.S.S.G. § 5C1.2 does afford a trial court
limited discretion to depart from a statutory minimum sentence. However, U.S.S.G.
Ҥ 5C1.2(a)(2) . . . renders a defendant ineligible for the benefit of the safety valve if he or she
possessed a firearm in connection with the offense.” United States v. Likins, 84 Fed. App’x 504,
512 (6th Cir. 2003). Croom was not eligible for the safety valve provision because she admitted
she was a felon in possession of a firearm.

11

The Guidelines mandated enhancement of Defendant’s criminal history category from
category I to category II. Counsel did argue that the warrant was stale and not entitled to
consideration. Counsel is not ineffective by failing to raise and pursue frivolous objections.
Defendant has failed to establish either prejudice or ineffective assistance.
IV.

CONCLUSION
The motion, together with the files and record in this case “conclusively show that the

prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Defendant’s conviction and sentence are
valid; therefore, her motion to vacate (D.E. 1) is DENIED. Judgment shall be entered for the
United States.
Pursuant to 28 U.S.C. § 2253(c)(1) and (2), the district court is required to evaluate the
appealability of its decision denying a § 2255 motion and to issue a certificate of appealability
(“COA”) “only if the applicant has made a substantial showing of the denial of a constitutional
right.” See also Fed. R. App. P. 22(b). No § 2255 movant may appeal without this certificate.
A COA may issue only if the movant “has made a substantial showing of the denial of a
constitutional right,” and the COA must “indicate the specific issue or issues [that] satisfy” the
required showing. 28 U.S.C. § 2253(c)(2), (3). A “substantial showing” is made when the
movant demonstrates 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.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (citation omitted) (internal quotation marks omitted); see also Henley v. Bell,
308 F. App’x 989, 990 (6th Cir. 2009) (per curiam) (same).
“[A] COA does not require a showing that the appeal will succeed,” Miller-El, 537 U.S.
at 337; Caldwell v. Lewis, 414 F. App’x 809, 814–15 (6th Cir. 2011); however, courts should not
12

issue a COA as “a matter of course.” Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005)
(per curiam) (quoting Miller-El, 537 U.S. at 337).
In this case, for the reasons previously stated, Defendant’s claim lacks substantive merit
and, therefore, she cannot present a question of some substance about which reasonable jurists
could differ. The Court therefore DENIES a certificate of appealability.
The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28 U.S.C.
§ 1915(a)–(b), does not apply to appeals of orders denying § 2255 motions. Kincade v.
Sparkman, 117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2255
case, and thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the
prisoner must obtain pauper status pursuant to Fed. R. App. P. 24(a). Kincade, 117 F.3d at 952.
Rule 24(a) provides that a party seeking pauper status on appeal must first file a motion in the
district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a)
also provides that if the district court certifies that an appeal would not be taken in good faith, or
otherwise denies leave to appeal in forma pauperis, the prisoner must file her motion to proceed
in forma pauperis in the appellate court. See Fed. R. App. P. 24(a) (4)–(5).
In this case, for the same reasons the Court denies a certificate of appealability, the Court
determines that any appeal would not be taken in good faith. It is therefore CERTIFIED,
pursuant to Fed. R. App. P. 24(a), that any appeal in this matter would not be taken in good faith,
and leave to appeal in forma pauperis is DENIED.
If Defendant files a notice of appeal, she must also pay the full $505 appellate filing fee,
see 28 U.S.C. §§ 1913, 1917, or file a motion to proceed in forma pauperis and supporting
affidavit in the Sixth Circuit Court of Appeals within thirty (30) days, see Fed. R. App. P.
24(a)(4)–(5).
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IT IS SO ORDERED this 22nd day of January 2015.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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