Harris v. Easterling

Filing 48


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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION JARVIS HARRIS, Petitioner, v. GRADY PERRY, Respondent. ) ) ) ) ) ) ) ) ) ) ) Case No. 2:12-cv-02668-STA-dkv ORDER CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL On February 10, 2016, the Court denied the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Petitioner, Jarvis Harris, Tennessee Department of Correction prisoner number 400198. (ECF No. 32.) Judgment was entered that same day. (ECF No. 33.) On September 27, 2016, the Court denied Petitioner’s motion to set aside the judgment. (ECF No. 38.) Petitioner filed a notice of appeal on December 16, 2016. (ECF No. 39.) The Court of Appeals dismissed the appeal for lack of jurisdiction on the ground that the appeal had not been filed timely. (ECF No. 41.) Petitioner then filed a motion for relief from judgment (ECF No. 42) which was denied on September 27, 2017. (ECF No. 43.) On October 23, 2017, Petitioner filed another notice of appeal. (ECF No. 44.) On November 27, 2017, Petitioner filed a motion for leave to appeal in forma pauperis. (ECF No. 47.) The motion is DENIED. There is no absolute entitlement to appeal a district court’s denial of a § 2254 petition. Miller-El v. Cockrell, 537 U.S. at 335; Bradley v. Birkett, 156 F. App’x 771, 772 (6th Cir. 2005). The Court must issue or deny a certificate of appealability (“COA”) when it enters a final order adverse to a § 2254 petitioner. Rule 11, Rules Governing Section 2254 Cases in the United States District Courts (“§ 2254 Rules”). A petitioner may not take an appeal unless a circuit or district judge issues a 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, 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 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.” Cockrell, 537 U.S. at 336 (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. Cockrell, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011). Courts should not issue a COA as a matter of course. Bradley, 156 F. App’x at 773. In this case, because any appeal by Petitioner on the issues raised in his § 2254 Petition and/or in his motion for relief from judgment does not deserve attention, the Court DENIES a certificate of appealability. Rule 24(a)(1) of the Federal Rules of Appellate Procedure provides that a party seeking pauper status on appeal must first file a motion in the district court, along with a supporting affidavit. However, 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 his motion to proceed in forma pauperis in the appellate court. See Fed. R. App. P. 24(a) (4)-(5). In this case, for the 2 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 Federal Rule of Appellate Procedure 24(a), that any appeal in this matter would not be taken in good faith, and leave to appeal in forma pauperis is DENIED. IT IS SO ORDERED. s/ S. Thomas Anderson S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE Date: November 28, 2017 3

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