Marshall v. State of Wisconsin

Filing 36

ORDER signed by Judge Pamela Pepper on 2/1/2016 DENYING 35 Petitioner's Request for Certificate of Appealability and Request for Motion to Proceed in forma pauperis on appeal. (cc: all counsel; by US Mail to Petitioner)(pwm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAVID MARSHALL,

Case No. 13-cv-111-pp
Petitioner,

v.
STATE OF WISCONSIN,
Respondent.

ORDER DENYING PETITIONER’S MOTION FOR CERTIFICATE OF
APPEALABILITY (DKT. NO. 35) AND DENYING PETITIONER’S MOTION TO
PROCEED IN FORMA PAUPERIS ON APPEAL (DKT. NO. 35-1)
_____________________________________________________________________________
On January 30, 2013, David Marshall, representing himself, filed a
petition for habeas corpus relief. Dkt. No. 1. On January 4, 2016, the court
denied and dismissed the petition, and declined to issue a certificate of
appealability. Dkt. No. 27. On January 19, 2016, the petitioner filed a motion
for extension of time to file a notice of appeal. Dkt. No. 29. The court construed
the motion as the petitioner’s notice of appeal, and directed the clerk’s office to
docket the motion as a notice of appeal. Dkt. No. 30. On January 19, 2016, the
clerk’s office filed the notice of appeal, Dkt. No. 31, and transmitted the notice
and docket sheet to the United States Court of Appeals for the Seventh Circuit.
Dkt. Nos. 33, 34. On January 25, 2016, the Court of Appeals sent back to this
court the petitioner’s request for a certificate of appealability, Dkt. No. 35, and
his motion to proceed in forma pauperis on appeal, Dkt. No. 35-1. This order
addresses both motions.

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CERTIFICATE OF APPEALABILITY
On January 25, 2016, the petitioner filed a brief setting forth the claims
on which his petition should move forward and asking the court to issue a
certificate of appealability. Dkt. No. 35. The court interprets the bulk of this
document as the petitioner’s brief in support of his appeal. This document
already has been filed on the docket for the Court of Appeals. See Marshall v.
Foster, Case No. 16-1135 (7th Cir. Jan. 25, 2016). In the brief, the petitioner
asks the court to “grant a Certificate of Appealability to prove that his
constitutional rights [are] being violated by the state[].” Dkt. No. 35 at 3. The
court interprets this as a motion asking the court to reconsider its January 4,
2016 order declining to issue a certificate of appealability. Dkt. No. 27.
An unsuccessful habeas petitioner does not have “an automatic right to
appeal a district court’s denial or dismissal of the petition.” Miller-El v.
Cockrell, 537 U.S. 322, 335 (2003). Rule 22(b) prohibits the petitioner from
“tak[ing] an appeal unless a . . . district court judge issues a certificate of
appealability under 28 U.S.C. §2253(c).” Fed. R. App. Proc. 22(b). See also
Miller-El, 537 U.S. at 335. A court will issue a certificate of appealability “only
if the prisoner has at least one substantial question for appeal.” 28 U.S.C.
§2253(c)(2). A petitioner makes a “substantial showing” by demonstrating that
reasonable minds “could disagree with the district court’s resolution of his
constitutional claims or . . . could conclude the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327.

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When the court denied the petition and dismissed the case, it also
declined to issue a certificate of appealability, “[b]ecause the petitioner ha[d]
not made a substantial showing of the denial of a constitutional right.” Dkt. No.
27 at 22. The petitioner’s brief does not include any new information or
arguments demonstrating substantial showing of the denial of a constitutional
right. Therefore, the court will deny his January 25, 2016 motion to reconsider
the court’s January 4, 2016 refusal to issue a certificate of appealability.
MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS
The petitioner also requests leave to appeal in forma pauperis, seeking to
avoid paying the $505 appellate filing fee. Dkt. No. 35-1 at 5. The district court
did not allow the petitioner to proceed in forma pauperis at the trial level, and
he paid the fee on February 11, 2013.
Fed. R. App. Proc. 24 governs motions for leave to proceed in forma
pauperis at the appellate level, and requires a petitioner “who desires to appeal
in forma pauperis” to “file a motion in the district court.” With the motion, the
petitioner “must attach an affidavit that: (A) shows in detail . . . the party’s
inability to pay . . . ; (B) claims an entitlement to redress; and (C) states the
issues that the party intends to present on appeal.” Id. See also 28 U.S.C.
§1915(a). The court finds that the petitioner has complied with the requirement
that he show an inability to pay, because he has filed the court’s standard
affidavit, on which he has included information on his finances. Dkt. No. 35;
Dkt. No. 35-1 at 6-11. The court finds, however, that the petitioner has not
claimed an entitlement to redress.
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The court may not grant a motion to waive the filing fee if it determines
that the petitioner has “not taken [the appeal] in good faith.” 28 U.S.C.
§1915(a)(3). A petitioner makes an appeal in good faith when the appeal is
“nonfrivolous.” Lee v. Clinton, 209 F.3d 1025, 1027 (7th Cir. 2000). “[T]o sue in
bad faith means merely to sue on the basis of a frivolous claim, which is to say
a claim that no reasonable person could suppose to have any merit.” Id. at
1026. “District courts must not ‘apply an inappropriately high standard when
making good faith determinations,’ and denial of a certificate of appeal does not
necessarily warrant denial of in forma pauperis status.” Grant v. Pollard, No.
14-C-1005, 2014 WL 6645306, at *1 (E.D. Wis. Nov. 24, 2014) (quoting Pate v.
Stevens, 163 F.3d 437, 439 (7th Cir. 1998)).
Neither the original petition nor the petitioner’s subsequent briefs
contained any viable constitutional claims. The petitioner has not provided any
argument or case law in his application to proceed in forma pauperis remedying
that deficiency. Accordingly, the court will deny the petitioner’s motion for leave
to appeal in forma pauperis. Under 28 U.S.C. §1915(a)(3), the court certifies
that the petitioner has not taken the appeal in good faith, and the court
determines that the petitioner may not proceed in forma pauperis on appeal.
The petitioner incurred the filing fee by filing the notice of appeal. Newlin
v. Helman, 123 F.3d 429, 433-34 (7th Cir. 1997), rev’d on other grounds by
Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000); Lee v. Clinton, 209 F.3d 1025
(7th Cir. 2000). This court will deny the request to proceed in forma pauperis,
which means that the petitioner must pay the full filing fee of $505 within
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fourteen (14) days of this order. Seventh Circuit Rule 3(b). Failure to pay in
full within fourteen days may result in dismissal of the appeal. Id.
The court DENIES the petitioner’s motion to reconsider its denial of his
request for a certificate of appealability (Dkt. No. 35). The court also DENIES
the petitioner’s motion to proceed in forma pauperis on appeal (Dkt. No. 35-1).
The court ORDERS the petitioner to pay $505 to the clerk of the district court
within fourteen (14) days of the date of this order.
Dated in Milwaukee, Wisconsin this 1st day of February, 2016.

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