Ervin v. Hammond

Filing 6

ORDER DISMISSING CASE; DENYING CERTIFICATE OF APPEALABILITY; CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH; DENYING LEAVE TO PROCEED IN FORMA PAUPERIS; DENYING MOTION FOR TEMPORARY RESTRAINING ORDER. Signed by Judge S. Thomas Anderson on 3/15/2013. (Anderson, S.)

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

)
(
(
)
)
(
(
)
)
(
(
)
)
(
(
)
)
(
(
)
)
(

LORENZO EDWIN ERVIN,
Petitioner,
vs.
JIM HAMMOND,
Respondent.

No. 13-2136-STA-dkv

ORDER ON PENDING MOTIONS
ORDER DENYING PETITION PURSUANT TO 28 U.S.C. § 2254
ORDER DENYING CERTIFICATE OF APPEALABILITY
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On March 4, 2013, Petitioner Lorenzo Edward Ervin, a resident
of Memphis, Tennessee, filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Ervin paid the
habeas filing fee. (ECF No. 2.) On March 7, 2013, Ervin filed an
emergency motion for a temporary restraining order and preliminary
injunction and a motion seeking leave to proceed in forma pauperis.
(ECF Nos. 3 & 4.) Because the filing fee has been paid, the motion
for leave to proceed in forma pauperis is DENIED as moot. The Clerk
shall record the respondent as Hamilton county Sheriff Jim Hammond.
Ervin

has

filed

an

Emergency

Motion

for

a

Temporary

Restraining Order and Preliminary Injunction that would prohibit

the Hamilton County Sheriff’s Office from arresting him until
resolution of the instant Petition. (ECF No. 3.) Ervin believes he
is subject to arrest because he has not paid court costs and fees
for the conviction at issue. (Id. at 6, 7.) Because the Petition
will be denied for the reasons stated infra, this motion is DENIED
as moot.
I.

STATE COURT PROCEDURAL HISTORY
On January 10, 2001, Ervin was convicted in the Criminal Court

for

Hamilton

County,

Tennessee,

of

disrupting

a

meeting,

in

violation of Tennessee Code Annotated § 39-17-306. At a sentencing
hearing on February 26, 2001, Ervin received a suspended sentence
of six months. (ECF No. 1 at 1.) Ervin appealed, and the Tennessee
Court of Criminal Appeals affirmed. State v. Ervin, No. E2001001147-CCA-R3-CD, 2003 WL 2154920 (Tenn. Crim. App. May 29, 2003),
appeal denied (Tenn. Oct. 6, 2003).1 Ervin did not file a postconviction petition. (See ECF No. 1 at 3-4.)
II.

PETITIONER’S FEDERAL HABEAS CLAIMS
In his federal habeas petition, Ervin raises the following

issues:
1.

Whether the trial court properly rejected the claim
that the State discriminated against AfricanAmericans in selecting a jury;

1
This was not Ervin’s first conviction under that statute. In a prior
case, the Tennessee Court of Criminal Appeals rejected Ervin’s challenge to the
constitutionality of the statute at issue. State v. Ervin, 40 S.W.3d 508 (Tenn.
Crim. App. 2000), appeal denied (Tenn. Feb. 12, 2001), cert. denied, 534 U.S. 842
(2001). It appears that Ervin filed a petition pursuant to 28 U.S.C. § 2254 in
the Eastern District of Tennessee, which was denied. Ervin v. State of Tenn., No.
1:00-cv-00343 (E.D. Tenn. dismissed Dec. 8, 2000).

2

2.

Whether there was sufficient evidence presented at
trial to convict him of the charged offense;

3.

Whether Tennessee Code Annotated § 39-17-306 is
vague and overly broad; and

4.
Whether the trial court erred by instructing the
jury regarding knowing or reckless conduct where the
statute did not provide a specific mens rea.
(ECF No. 1 at 5-10.)
III.

ANALYSIS OF PETITIONER’S CLAIMS
A federal court may grant habeas relief to a state prisoner

“only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). The “in custody” requirement of 28 U.S.C. § 2254(a) is
evaluated as of the date on which the petition is filed. See, e.g.,
Carafas v. LaVallee, 391 U.S. 234 (1968) (habeas petition is not
moot and court is not divested of jurisdiction where petitioner is
unconditionally released from custody during pendency of appeal);
United States v. Zack, No. 98-1526, 1999 WL 96996 (6th Cir. Feb. 1,
1999) (§ 2255 motion not moot where prisoner is on supervised
release). In this case, a suspended sentence of six months was
imposed on February 26, 2001. That sentence had fully expired more
than eleven years before Ervin filed the instant Petition and,
therefore, the “in custody” requirement is not satisfied. See
Maleng v. Cook, 490 U.S. 488, 492 (1989) (“in custody” requirement
not satisfied for fully expired conviction despite possibility
conviction might be used to enhance future sentence; Ward v.

3

Knoblock,

738

F.2d

134,

138

(6th

Cir.

1984)

(“in

custody”

requirement not satisfied where prisoner sought to challenge past
confinement under similar provision of 28 U.S.C. § 2254); United
States v. Onyango, Criminal Action No. 09-128-KSF, Civil Action No.
12-7195-KSF-JGW, 2012 WL 1940621, at *1-2 (E.D. Ky. Apr. 27, 2012)
(federal defendant who was sentenced to time served with no
supervised release not “in custody”) (report and recommendation),
adopted, 2012 WL 1940613 (E.D. Ky. May 29, 2012); United States v.
Peatross, Criminal No. 06-20351, Civil No. 11-11089, 2011 WL
2618533, at *1 (E.D. Mich. June 30, 2011).
This conclusion is not altered by the fact that Ervin has
refused to pay court costs. See, e.g., Thrower v. City of Akron, 43
F. App’x 767 (6th Cir. 2002) (“A monetary fine is not a sufficient
restraint on liberty to meet the ‘in custody’ requirement. Nor does
potential future incarceration for failure to pay such a fine
provide the requisite subject matter jurisdiction.”); Evans v.
Birkett, No. 10-14787-BD, 2012 WL 86800, at *2 (E.D. Mich. Jan. 11,
2012) (“The imposition of a fine . . . is not a sufficient
restraint on liberty to meet the ‘in custody’ requirement.”);
Bowling v. Holland, No. 1:11 CV 492, 2011 WL 5024171 (N.D. Ohio
Aug. 23, 2011) (failure to pay court costs does not satisfy “in
custody” requirement) (report and recommendation), adopted, 2011 WL
5024170 (N.D. Ohio Oct. 20, 2011).

4

Because

Petitioner

has

not

satisfied

the

“in

custody”

requirement, his petition pursuant to 28 U.S.C. § 2254 is DENIED
WITH PREJUDICE. Judgment shall be entered for Respondent.
IV.

APPEAL ISSUES
There is no absolute entitlement to appeal a district court’s

denial of a § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322,
335 (2003); 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. 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.” Miller-El, 537 U.S. at 336; 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

5

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, there can be no question that Petitioner’s
claims are meritless for the reasons previously stated. Because any
appeal by Petitioner on the issues raised in this petition does not
deserve attention, the Court DENIES a certificate of appealability.
The Court must also consider whether Defendant should be
allowed to appeal this decision in forma pauperis, should he seek
to do so. The United States Court of Appeals for the Sixth Circuit
requires that all district courts in the circuit determine, in all
cases where the appellant seeks to proceed in forma pauperis,
whether the appeal would be frivolous. Twenty-eight U.S.C. §
1915(a)(3) provides that “[a]n appeal may not be taken in forma
pauperis if the trial court certifies in writing that it is not
taken in good faith.”
Pursuant to the Federal Rules of Appellate Procedure, a nonprisoner desiring to proceed on appeal in forma pauperis must
obtain pauper status under Fed. R. App. P. 24(a). See Callihan v.
Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999). Rule 24(a)
provides that if a party seeks pauper status on appeal, he 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

6

not be taken in good faith, or otherwise denies leave to appeal in
forma pauperis, the litigant must file his motion to proceed in
forma pauperis in the Court of Appeals. Fed. R. App. P. 24(a)(4)(5).
The good faith standard is an objective one. Coppedge v.
United States, 369 U.S. 438, 445 (1962). The test under 28 U.S.C.
§ 1915(a) for whether an appeal is taken in good faith is whether
the litigant seeks appellate review of any issue that is not
frivolous. Id. The same considerations that lead the Court to deny
this § 2254 petition and to deny a certificate of appealablity also
compel the conclusion that an appeal would not be taken in good
faith.

It

is

therefore

CERTIFIED,

pursuant

to

28

U.S.C.

§

1915(a)(3), that any appeal in this matter by Defendant would not
be taken in good faith and Defendant may not proceed on appeal in
forma pauperis. Leave to proceed on appeal in forma pauperis is,
therefore, DENIED.2
IT IS SO ORDERED this 15th day of March, 2013.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

2
If Defendant files a notice of appeal, he must also pay the full $455
appellate filing fee or file a motion to proceed in forma pauperis and supporting
affidavit in the United States Court of Appeals for the Sixth Circuit within
thirty (30) days.

7