Smith v. United States of America

Filing 13

ORDER DENYING § 2255 MOTION, DENYING RELIEF UNDER JOHNSON V. UNITED STATES, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge J. Daniel Breen on 7/17/18. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TEDDRICK LAMAR SMITH,
Petitioner,
v.

No. 1:15-cv-01097-JDB-egb

UNITED STATES OF AMERICA,
Respondent.
ORDER DENYING § 2255 MOTION,
DENYING RELIEF UNDER JOHNSON V. UNITED STATES,
DENYING CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
On April 27, 2015, Petitioner, Teddrick Lamar Smith, filed a pro se motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255 (“Petition”). (Docket Entry (“D.E.”) 1.)
He subsequently added a claim seeking relief under Johnson v. United States, 135 S. Ct. 2551
(2015). (D.E. 4.) For the reasons that follow, the Petition and the Johnson claim are DENIED.1
BACKGROUND
In April 2012, Smith was indicted by a federal grand jury on one count of conspiring to
“manufacture, distribute and attempt to distribute, and possess with intent to distribute more than
28 grams of . . . cocaine base (crack cocaine) . . . and to possess with intent to distribute more
than 500 grams of cocaine,” in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1); and one
count of possessing and distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.

All record citations are to documents filed in Case Number (“No.”) 15-cv-01097, unless
otherwise noted.
1

§ 2 (Count 3).2 (No. 12-cr-10040, D.E. 2 at PageID 7-8, 10.) Attorney Lee Sparks was
appointed as defense counsel. Defendant subsequently requested new counsel, and the Court
appointed attorney Mike Scholl.
According to the Presentence Report (“PSR”), the charges against Smith arose from the
FBI’s interception of several calls he placed to a certain cell phone number in November and
December 2011. During one of the calls, he asked to purchase approximately 125 grams of
cocaine.

During another, he “discussed and made arrangements for the purchase of . . .

approximately 226 grams . . . of cocaine.” (PSR ¶ 11 (emphasis omitted).)
In February 2013, Petitioner entered into a plea agreement with the Government. (No.
12-cr-10040, D.E. 430.) He agreed to plead guilty to Count 3 of the indictment, stipulate to the
drug quantity, waive his right to take a direct appeal except under narrow circumstances, and
waive his right to collaterally attack his sentence. For its part, the Government agreed to dismiss
Count 1 as to Smith, stipulate to the drug quantity, move for the application of acceptance of
responsibility points, and recommend a sentence within the advisory sentencing range under the
United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”).
The inmate subsequently pleaded guilty at a hearing before the Court. (Id., D.E. 428.)
After the required colloquy, see Fed. R. Crim. P. 11(b), the Court accepted the plea. (Id., D.E.
516 at PageID 965.)
In April 2013, the United States Probation Office submitted the PSR to the parties, setting
forth the calculation of Defendant’s Guidelines sentencing range.3 The PSR assigned a base
2

The indictment was brought against fourteen individuals. Petitioner was not named in
Count 2 of the indictment.
3

Except where noted, all references to the Guidelines are to the 2012 Guidelines in effect
on the date of Smith’s sentencing. See United States Sentencing Commission, Guidelines
Manual (Nov. 2012).
2

offense level of 22 based on a drug quantity of 351 grams. See U.S.S.G. § 2D1.1. The offense
level was enhanced to 32 under the career offender provision. See U.S.S.G. § 4B1.1(b)(3). The
predicate offenses for the enhancement were two Tennessee convictions for the sale of marijuana
and one Tennessee conviction for evading arrest in a motor vehicle. A total offense level of 29
was arrived at after a three-point reduction for acceptance of responsibility. “Based upon a total
offense level of 29 and a criminal history category of VI, the [G]uideline[s] imprisonment range”
was calculated to be 151-188 months. (PSR ¶ 87.)
Defense counsel filed a position statement in which he “object[ed] to . . . a career
offender” sentence. (No. 12-cr-10040, D.E. 497 at PageID 892.) He argued that a 151-month
sentence as a career offender would be “disproportionate to the . . . sentences received” by his
co-defendants in light of his “record and . . . role in the offense.” (Id.)
The sentencing hearing was held on August 27, 2013. (No. 12-cr-10040, D.E. 498.)
Defense counsel argued for a below-Guidelines sentence. The Court asked Defendant if he “had
the opportunity to receive and review a copy of the presentence report and discuss that with [his]
attorney,” and Smith answered, “Yes, sir.” (Id., D.E. 517 at PageID 986.) The Court determined
that the drug quantity was 351 grams, found Defendant to be a career offender, and applied a
three-point reduction for his acceptance of responsibility.

The Court imposed a below-

Guidelines sentence of 120 months of incarceration and three years of supervised release. (Id.,
D.E. 498.)
Petitioner appealed his sentence on the ground that his guilty plea was involuntary due to
the ineffective assistance of counsel. He specifically argued that counsel should have challenged
the use of his evading arrest conviction as a predicate offense under the Guidelines’ career
offender provision. The appellate court held that the argument was without merit under Sixth

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Circuit precedent, but recognized that Defendant was preserving the issue. (Id., D.E. 536 at
PageID 1059.) He filed a petition for writ of certiorari, which was denied. See Smith v. United
States, 134 S. Ct. 1923 (Mem.) (2014).
On April 23, 2015, the inmate submitted his federal Petition to prison authorities for
mailing. (D.E. 1 at PageID 12.) The Petition presented the following claims:
Claim 1: The guilty plea was involuntary and unknowing due to counsel’s
ineffective assistance in failing to explain to Petitioner “what he was actually
pleading guilty to,” failing to explain the terms of the plea agreement, failing “to
prepare for trial,” and “pres[s]ur[]ing him into believing a guilty plea was his only
option and alternative.” 4 (Id. at PageID 4, 6.)
Claim 2: The Court “erred in determining the drug quantity attributable” to
Petitioner. (Id. at PageID 5.)
On August 10, 2015, the inmate filed a document supplementing the Petition with a claim
under Johnson. (D.E. 4.) Appointed counsel submitted a supplemental memorandum in support
of the claim, (D.E. 6-1), and the Court ordered the Government to respond to all claims, (D.E.
10).
Respondent filed a response on May 8, 2018. (D.E. 11.) Petitioner did not file a reply,
although allowed to do so, (D.E. 10 at PageID 46).
LEGAL STANDARDS
A prisoner seeking to vacate his sentence under § 2255 “must allege either: ‘(1) an error
of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
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) (quoting Mallett v. United States, 334 F.3d 391, 496-97
(6th Cir. 2003)).

For clarity’s sake, the Court has liberally construed Grounds One and Two of the
Petition as stating a single claim for attorney ineffective assistance at the plea stage.
4

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1. Involuntary Plea
A claim that the petitioner’s guilty plea was involuntary is controlled by the standards set
forth in Boykin v. Alabama, 395 U.S. 238 (1969), and Brady v. United States, 397 U.S. 742
(1970). Under those cases, “[a] guilty plea is valid only if the defendant knowingly, intelligently
and voluntarily waives the many constitutional rights associated with a criminal trial . . . and has
‘sufficient awareness of the relevant circumstances and likely consequences’ of the plea.”
United States v. Taylor, 281 F. App’x 467, 469 (6th Cir. 2008) (quoting Brady, 397 U.S. at 748)
(citing Boykin, 395 U.S. at 243). “At a minimum, the defendant must understand the ‘critical’ or
‘essential’ elements of the offense to which he or she pleads guilty.” United States v. Valdez,
362 F.3d 903, 909 (6th Cir. 2004) (citing Bousley v. United States, 523 U.S. 614, 618-19 (1998)).
“The satisfaction of these requirements cannot be inferred from the bare fact that the defendant
pleaded guilty, because he still might not have known what he was giving up when he did so.”
Ruelas v. Wolfenbarger, 580 F.3d 403, 409 (6th Cir. 2009) (citing Boykin, 395 U.S. at 243).
2. Ineffective Assistance of Counsel
A § 2255 claim that an attorney’s ineffective assistance has deprived a criminal defendant
of his Sixth Amendment right to counsel is controlled by the standards stated in Strickland v.
Washington, 466 U.S. 668 (1984). To succeed on such a claim, a petitioner must demonstrate
two elements: (1) “that counsel’s performance was deficient” and (2) “that the deficient
performance prejudiced the defense.” Id. at 687. “The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686.
To establish deficient performance, a petitioner “must show that counsel’s representation
fell below an objective standard of reasonableness.” Id. at 688. A court considering a claim of

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ineffective assistance must apply “a strong presumption” that counsel’s representation was
“within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)).
Prejudice is established where there exists “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at
694.

“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.’”

Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting

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.’” (quoting Strickland, 466 U.S. at 687)).
Strickland’s two-pronged test applies where a defendant alleges that his guilty plea was
not knowing and voluntary due to the ineffective assistance of counsel. Hill v. Lockhart, 474
U.S. 52, 57 (1985). To establish prejudice in the plea context, a petitioner must show that if
counsel had not performed deficiently, there is a “reasonable probability” that he would not have
pleaded guilty but instead would have proceeded to trial. Id. at 59. The reasonable probability
test is objective, not subjective; the “petitioner must convince the court that a decision to reject
the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559
U.S. 356, 372 (2010) (citation omitted).
DISCUSSION
Respondent argues that Petitioner is not entitled to relief under § 2255 because “[h]is
original [Petition] was untimely; he previously waived his collateral attack rights; he

6

procedurally defaulted certain of his claims; some of his claims are non-cognizable; and the
underlying claims are meritless.” (D.E. 11 at PageID 54.) Petitioner did not respond to these
arguments.
1. Statute of Limitations
In most cases, a federal criminal defendant is limited to one collateral attack filed within
one year of the date his conviction became final. 28 U.S.C. § 2255(f)(1).

Generally, “a

conviction becomes final for purposes of collateral attack at the conclusion of direct review.”
United States v. Cottage, 307 F.3d 494, 498 (6th Cir. 2002).
Here, the inmate’s conviction became final on April 21, 2014, when the United States
Supreme Court denied certiorari. See Smith, 134 S. Ct. 1923. The limitations period began to
run the next day and expired one year later, on April 21, 2015. See Bronaugh v. Ohio, 235 F.3d
280, 285 (6th Cir. 2000) (holding that, where the petitioner’s conviction became final on
September 9, 1996, the one-year limitations period began to run the next day and, absent tolling,
would have expired on September 9, 1997); see also Merriweather v. City of Memphis, 107 F.3d
396, 398 (6th Cir. 1997) (citations omitted) (holding that a one-year limitations period generally
“ends on the same calendar date the following year”).
The Petition, which was submitted to prison authorities for mailing on April 23, 2015, is
thus untimely by two days. “Absent compelling equitable considerations, a court should not
extend limitations by even a single day.” Jurado v. Burt, 337 F.3d 638, 643 (6th Cir. 2003)
(quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th
Cir. 2000)). The inmate has not identified any such considerations. The late filing is therefore
unexcused.

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The claims set forth in the Petition are DISMISSED as untimely.5
The Court nevertheless addresses the Government’s waiver argument and the merits of
all claims. 6
2. Waiver
Respondent argues that the Court need not reach the merits of Smith’s claims because he
waived his right to bring them. Petitioner has not responded to the Government’s waiver
argument. He asserts in the Petition, however, that his guilty plea, which included his collateralrights waiver, was not knowing and voluntary due to the ineffective assistance of counsel.
A defendant’s waiver of his right to collaterally attack his conviction and sentence
pursuant to § 2255 is enforceable if entered into “knowingly, intelligently, and voluntarily.”
Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001) (citation omitted). A defendant may
thus challenge the voluntariness of his plea and waiver in a § 2255 proceeding. In re Acosta, 480
F.3d 421, 422 (6th Cir. 2007) (holding that a waiver of § 2255 rights cannot foreclose evaluation
of an argument that the guilty plea was not knowing and voluntary, or was the product of
ineffective assistance of counsel).
As discussed immediately below, the Court finds that the guilty plea was not involuntary
due to the ineffectiveness of counsel. Instead, the record in the inmate’s criminal case shows that

5

The Johnson claim is not untimely. Petitioner filed the claim on August 10, 2015, which
was less than one year after the United States Supreme Court’s decision in Johnson. See 28
U.S.C. § 2255(f)(3) (providing that the one-year limitations period for a newly recognized claim
runs from “the date on which the right asserted was initially recognized by the Supreme Court”).
A § 2255 petitioner is entitled to an evidentiary hearing “[u]nless the motion and the
files and records of the case conclusively show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255(b). The records in Petitioner’s criminal case conclusively show that he is not
eligible for relief on his claims. An evidentiary hearing is therefore unnecessary.
6

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he voluntarily and knowingly entered a plea of guilty and waived his right to bring claims under
§ 2255. The waiver is thus enforceable.
3. Claim 1: Involuntary Plea Due to Ineffective Assistance of Counsel
Smith asserts that his guilty plea was “unknowing, unintelligent and involuntary” due to
defense counsel’s ineffective assistance.

(D.E. 1 at PageID 4.)

He alleges that counsel

“pres[s]ur[ed] him into believing a guilty plea was his only option and alternative.” (Id. at
PageID 6.) He also insists that the plea was involuntary because counsel was unprepared for trial
and did not explain to him the charge to which he was pleading guilty or the terms of the plea
agreement. The inmate claims he therefore “didn’t have a clue as to what he was actually
pleading guilty to or the language contained in the plea agreement.” (Id. at PageID 4.)
Petitioner has not shown that his guilty plea was involuntary due to attorney
ineffectiveness.

To begin with, his conclusory allegations that counsel pressured him into

pleading guilty and did not prepare for trial are not supported by specific factual allegations. The
general allegations are therefore disregarded. See Wogenstahl v. Morgan, 668 F.3d 307, 343 (6th
Cir. 2012) (“Merely conclusory allegations of ineffective assistance . . . are insufficient to state a
constitutional claim.” (citation omitted)).
In addition, the record in the inmate’s criminal case undermines his allegation that he
“didn’t have a clue” about the charge to which he was pleading guilty or the terms of the plea
agreement. That agreement, which Petitioner signed, contained the following terms:
1. To stipulate “that the most readily provable amount of drugs for which [he]
should be held accountable is at least 300 grams, but less than 400 grams of
cocaine”;
2. To waive his appellate rights as long as the sentence was below the statutory
maximum and was not a “result of an upward departure from the
[G]uideline[s] range that the [C]ourt establishes at sentencing”;

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3. “[T]o request that the . . . [C]ourt enter a specific finding that [his] waiver of
his right to appeal the sentence . . . was knowing and voluntary”; and
4. To waive his right to collaterally attack his conviction and sentence and the
manner in which the sentence was determined.
(No. 12-cr-10040, D.E. 430 at PageID 652, 654.)
Petitioner further acknowledged that he was “satisfied that all acts and/or any omissions
of counsel for the defense have been the result of reasonable professional judgment and that
[D]efendant has been provided adequate legal representation.” (Id. at PageID 655.) For its part,
the Government promised to dismiss Count 3 of the indictment as to Smith, stipulate to the drug
quantity, and recommend a sentence within the Guidelines range.
At the start of the change of plea hearing, the Court advised Defendant that he should let
the Court or his attorney know “[i]f there is anything . . . that you do not understand,” and Smith
stated that he would do so. (No. 12-cr-10040, D.E. 516 at PageID 947.) He answered, “Yes,”
when asked, “Did you sign and enter into [the plea] agreement following your discussion with
your attorney and having reviewed that document with him, sir?”

(Id. at PageID 955.)

Defendant acknowledged that he was satisfied with the advice and representation of his attorney.
The prosecutor summarized the plea agreement, including the waiver provisions. The Court
asked Defendant if he understood and agreed to the terms of the plea agreement, and he stated
that he did.
The Court read Count 3 of the indictment in its entirety in open court. Smith was then
asked whether he understood what he was “being charged with in that count,” and he answered,
“Yes, sir.” (Id. at PageID 952.) The Court advised him of the criminal trial rights he was giving
up and the potential penalties for the crime to which he was pleading guilty, and he stated that he
understood. He denied that anyone threatened or forced him to plead guilty, and he answered

10

“No” when asked whether “anyone made any promise or prediction to [him] about what [his]
sentence would be if [he] plead guilty to [the] charge.” (Id. at PageID 963.) Upon finding that
Defendant was “freely and voluntarily pleading guilty,” the Court accepted the plea. (Id. at
PageID 965.)
Petitioner has not submitted any evidence calling into question his representation in the
plea agreement that he was satisfied with his attorney’s representation. He also does not identify
any evidence contradicting his sworn testimony that he understood the terms of the plea
agreement, the “many constitutional rights” he was waiving, Taylor, 281 F. App’x at 469, and
the key “elements of the offense to which he” was pleading guilty, Valdez, 362 F. 3d at 909. His
sworn testimony is a “formidable barrier” to § 2255 relief, which he has not overcome.
Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also Craig v. United States, Nos. 2:08-CV-56,
2:04-CR-78, 2011 WL 864359, at *6 (E.D. Tenn. Mar. 10, 2011) (holding that “the transcript of
the change of plea hearing confirm[ed] the knowing and voluntary nature of the waiver”), aff’d,
513 F. App’x 487 (6th Cir. 2013).
Finally, the bargain Petitioner received cuts against his bald assertion that, but for
counsel’s alleged deficient performance, he would have insisted on going to trial. See Moore v.
United States, 676 F. App’x 383, 386 (6th Cir. 2017) (holding that, in determining whether a
“rational” criminal defendant would have insisted on going to trial, a court must consider the
“disadvantages” he would have faced had he rejected the plea offer). As the PSR noted, the
dismissal of Count 1 “effectively eliminate[d] the potential for . . . statutory exposure” to forty
years of incarceration. (PSR ¶ 88.) Moreover, Defendant received a three-level reduction for
acceptance of responsibility, the Government’s stipulation to a maximum drug quantity, and a
promise by the Government to recommend a sentence within the Guidelines range.

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On this record, Petitioner’s claim that his plea agreement, which included a collateralrights waiver, was involuntary and unknowing due to attorney ineffectiveness is without merit.
Claim 1 is DENIED.
4. Claim 2: Erroneous Drug Quantity Determination
Smith maintains that the Court erred in determining the drug quantity attributable to him,
arguing that the Court simply adopted the PSR’s finding without independently verifying the
amount. He cannot prevail on this claim.
The Guidelines in effect at the time of Petitioner’s sentencing provided that an offense
involving at least 300 grams but less than 400 grams of cocaine has a base offense level of 22.
U.S.S.G. § 2D1.1.

As noted, the PSR found that “the total amount of relevant conduct

attributable to Smith is 351.0 grams of cocaine.” (PSR ¶ 12.) Each party filed a position
statement regarding the PSR’s findings and recommendations, but neither party objected to the
drug quantity finding. At sentencing, the Court determined that the drug quantity attributable to
the Defendant was 351 grams.
Smith challenges the Court’s drug quantity finding for the first time in this § 2255
proceeding. The claim, however, is not properly before the Court, as it is procedurally defaulted.
Claims that could have been raised on direct appeal, but were not, are procedurally
defaulted and will not be entertained by motion under § 2255 unless the petitioner shows cause
and actual prejudice to excuse his failure to raise the claims previously, or that he is actually
innocent of the crime. Bousley, 523 U.S. at 622 (quoting Murray v. Carrier, 477 U.S. 478, 485,
496 (1986)).

Ineffective assistance of appellate counsel may establish cause to excuse a

procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000).

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The inmate did not raise the drug quantity issue on direct appeal, and he has not
established cause to excuse the default.

Although he asserts that appellate counsel was

ineffective by not raising this issue, he has not identified any evidence that the drug quantity
found by the Court was incorrect. He also has not shown, as he must, that the issue “was clearly
stronger than [the] issue[] that counsel did present.”

Caver v. Straub, 349 F.3d 340, 348 (6th

Cir. 2003) (quoting Smith v. Robbins, 528 U.S. 259, 289 (2000)).
Even on its merits, however, Claim 2 would have to be denied. As noted, Smith has not
offered any evidence that the drug quantity was less than 351 grams. Indeed, by the terms of the
plea agreement, he stipulated that the quantity was at least 300, but less than 400, grams. As the
Court has already determined, Petitioner knowingly and voluntarily agreed to all of the terms of
that bargain.
For these reasons, Claim 2 is DISMISSED.
5. Claim 3: Relief Under Johnson
Smith challenges his sentence based on the Supreme Court’s ruling in Johnson that the
residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is
unconstitutionally void for vagueness. See Johnson, 135 S. Ct. at 2557. He argues that Johnson
renders unconstitutional his designation as a career offender under § 4B1.1 of the Guidelines.
The argument fails. On March 6, 2017, the Supreme Court refused to extend Johnson’s
reasoning to the Guidelines’ career offender provisions. See Beckles v. United States, 137 S. Ct.
886, 892 (2017). The Court explained that, “[u]nlike the ACCA . . . the advisory Guidelines do
not fix the permissible range of sentences.” Id. “[T]he Guidelines,” therefore, “are not subject to
a vagueness challenge under the Due Process Clause.” Id.
The Johnson claim is therefore DENIED.

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For the foregoing reasons, the Court holds that Smith is not entitled to relief under §
2255.
APPEAL ISSUES
A § 2255 petitioner may not proceed on appeal unless a district or circuit judge issues a
certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA
may issue only if the petitioner has made a substantial showing of the denial of a constitutional
right.

28 U.S.C. § 2253(c)(2)-(3).

A substantial showing is made when the petitioner

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) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “If the petition was denied
on procedural grounds, the petitioner must show, ‘at least, that jurists of reason would find it
debatable whether the petition 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.’” Dufresne v. Palmer, 876 F.3d 248, 253 (6th Cir. 2017) (per curiam) (quoting Slack,
529 U.S. at 484).
In this case, reasonable jurists would not debate the correctness of the Court’s decision to
deny the Petition and the Johnson claim. Because any appeal by Petitioner does not deserve
attention, the Court DENIES a certificate of appealability.
Pursuant to Federal Rule of Appellate Procedure 24(a), 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). However, Rule 24(a) also provides that if the district court certifies that an appeal

14

would not be taken in good faith, the prisoner must file his motion to proceed in forma pauperis
in the appellate court. Id.
In this case, for the same reason it denies a COA, the Court CERTIFIES, pursuant to
Rule 24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in
forma pauperis is therefore DENIED.7
IT IS SO ORDERED this 17th day of July 2018.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

7

If Petitioner files a notice of appeal, he must also pay the full $505.00 appellate filing fee
or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court
of Appeals within thirty days.
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