Altman v. McCaughtry
Filing
39
ORDER Denying Certificate of Appealability, Confirming Denial of Motion for Leave to Proceed without Prepayment of Fees, and Certifying that Appeal is Not Taken in Good Faith. Signed by Judge Charles N Clevert, Jr on 2/16/17. (cc: all counsel via US Mail and WI DOJ)((kwb), C. N. Clevert, Jr.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LEWIS ALTMAN, JR.,
Petitioner,
v.
Case No. 97-C-0445
GARY McCAUGHTRY,
Respondent.
ORDER DENYING CERTIFICATE OF APPEALABILITY, CONFIRMING DENIAL OF
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF FEES,
AND CERTIFYING THAT APPEAL IS NOT TAKEN IN GOOD FAITH
At the end of 1998, this court dismissed Lewis Altman, Jr.’s habeas case at his request
and entered final judgment. Altman’s early 1999 motion to alter or amend the judgment and
2003 motion to reopen the case were thereafter denied. Then, over seventeen years after
entry of judgment, in June 2016 Altman asked the court to review his case and excuse any
procedural default. Altman’s motion discussed the merits of his ineffective-assistance-ofcounsel claim and referred to two Supreme Court cases, Martinez v. Ryan, 132 S. Ct. 1309
(2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013), concerning the ability of a habeas
petitioner to establish cause for a procedural default through the ineffective assistance of
counsel in collateral proceedings. The court denied the motion for review on October 18,
2016, stating:
Altman’s case was dismissed almost twenty years ago. Not only does
there appear to be no legal basis for reopening his case under Martinez and
Trevino, but the court has twice denied his requests to reopen. Moreover,
Altman’s lengthy delay cannot be ignored. This case terminated long ago and
should remain closed.
(Doc. 25.)
Within two weeks of that denial, Altman filed a motion for reconsideration, contending
that the court failed to apply the correct principles from Martinez, Trevino, and a Ninth Circuit
decision and failed to address the contents of his “Martinez motion.” The motion for
reconsideration was denied on November 17, 2016. The court remarked:
No discussion of the holdings of Martinez and Trevino is required here.
The first issue is whether this case, dismissed eighteen years ago, should be
reopened—not whether there are legal arguments that the court could consider
if the case were reopened. As stated in this court’s October [18] order, Martinez
and Trevino have nothing to say regarding whether an old habeas case should
be reopened. Moreover, for valid reasons this court has twice denied Altman’s
requests to reopen and finality is important in this habeas context.
(Doc. 27 at 1–2.)
Altman appealed the court’s two orders. He later filed a motion for leave to appeal
without prepayment of the fees.
CERTIFICATE OF APPEALABILITY
Before a habeas petitioner may appeal, he must obtain a certificate of appealability.
See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 327,
335–36 (2003). The requirement of a certificate of appealability applies not only regarding
final judgments on the merits but also regarding denials of motions under Fed. R. Civ. P. 60(b)
and dismissals of unauthorized successive attacks. West v. Schneiter, 485 F.3d 393 (7th Cir.
2007); Sveum v. Smith, 403 F.3d 447 (7th Cir. 2005).
If the court issues a certificate of appealability it must indicate on which specific issue
or issues the petitioner has satisfied the “substantial showing” requirement. 28 U.S.C.
§ 2253(c)(3); Davis v. Borgen, 349 F.3d 1027, 1028, 1029 (7th Cir. 2003). If the court denies
the request for a certificate of appealability, it must state its reasons. Fed. R. App. P. 22(b)(1).
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A certificate of appealability issues only if the petitioner makes a “substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner makes a
“substantial showing” by demonstrating that “jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S.
at 327; accord Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The certificate of appealability determination is not a second assessment of the merits.
See Miller-El, 537 U.S. at 327, 336. Instead, the determination requires only a threshold
inquiry into the debatability of the district court’s decision. Id. at 336. The petitioner need not
demonstrate that the appeal will succeed. Id. at 337. A claim may be debatable even though
every jurist, after full consideration of the merits of the case, would decide against the
petitioner. Id. at 338; see also Davis, 349 F.3d at 1028 (“[C]ertificates properly issue in many
cases in which the prisoner will fail on full merits review.”). “The question is the debatability
of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 at 342.
When a district court has rejected a petitioner’s constitutional claims on the merits, “the
showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack, 529 U.S. at 484. When a district court dismisses a habeas
petition based on procedural grounds without reaching the underlying constitutional claims,
a certificate of appealability “should issue when the prisoner shows, 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.” Slack, 529 U.S. at 484 (emphasis added).
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Although neither Altman nor this court specifically identified the recent motions as being
brought under Rule 60(b), that is how the court treated them. The court found no basis for
any relief from the judgment. Motions under Rule 60(b)(1), (2), and (3) must be made within
a year, and those under Rule 60(b)(4), (5), and (6) must be made within a “reasonable time.”
Fed. R. Civ. P. 60(c)(1). Under any Rule 60(b) provision, then—mistake, inadvertence,
inequitable prospective application or “any other reason” justifying relief—Altman filed his
motions at least more than a decade too late. Even his request to reopen was filed three
years after the “new” case law he wanted the court to consider. Reasonable jurists would all
have denied these Rule 60(b) motions and, more importantly for present purposes, would not
find those denials worthy of debate. See, e.g., Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)
(“[A] movant seeking relief under Rule 60(b)(6) [must] show ‘extraordinary circumstances’
justifying the reopening of a final judgment. Such circumstances will rarely occur in the
habeas context.” (citations omitted)); West, 485 F.3d at 395 (highlighting the same). Because
reasonable jurists would not debate this procedural ruling, the court need go no further to
address the content of Altman’s motions.
To the extent Altman might argue that this court erred in construing his filings as Rule
60(b) motions rather than second or successive petitions, see Gonzalez, 545 U.S. at 528–36,
538; Sveum, 403 F.3d at 448, reasonable jurists could debate that procedural treatment.1
However, such an error would not implicate the denial of any constitutional right, as required
1
Gonzalez held that a Rule 60(b) m otion in a habeas case should be construed as a second or
successive petition if it presents a “claim ” for relief, such as a new claim or an attack on the court’s previous
resolution of a claim on the m erits. The m otion should be construed under Rule 60(b) if neither the m otion nor
the judgm ent from which it seeks relief substantively addresses federal grounds for setting aside the m ovant’s
state conviction. 545 U.S. at 532–33; W est, 485 F.3d at 394. Altm an’s habeas case was dism issed back in
1998 at Altm an’s request, not based on the m erits, and Altm an’s m otions argue issues of procedural default.
Therefore, the court treated the m otions under Rule 60(b). But reasonable jurists could argue about the correct
procedural treatm ent of the m otions, even if all would decide that Rule 60(b) was the proper construction.
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for a certificate of appealability. § 2253(c)(2); see West, 485 F.3d at 395 (“[Q]uestions of
statutory interpretation . . . do not qualify for a certificate, because they do not concern the
Constitution”).
MOTION FOR LEAVE TO PROCEED WITHOUT PAYMENT OF THE FEES
Apparently due to Altman’s filing of notices of appeal in the district court and Seventh
Circuit, two separate appeals were docketed. Altman then filed a motion for leave to proceed
in forma pauperis, i.e., without paying the appellate filing fees. (Doc. 36.) Thereafter, he
dismissed one of the appeals voluntarily. Initially this court denied the motion for leave to
proceed in forma pauperis as moot because of the voluntary dismissal of the appeal, failing
to realize that the other appeal remained pending. Therefore, the court will address the fee
motion on the merits.
Title 28 U.S.C. § 1915(a)(1) authorizes the commencement of an appeal without
prepayment of fees by a person who submits an affidavit that includes a statement of all
assets he possesses and that he is unable to pay such fees. Section 1915(a)(3) adds that
an appeal may not be taken in forma pauperis if the district court certifies in writing that the
appeal is not taken in “good faith.” Further, back in April 1998 the court granted leave to
proceed in forma pauperis in the district court. A party permitted to proceed in forma pauperis
in the district court may proceed on appeal without further authorization unless the district
court certifies that the appeal is not taken in “good faith” and states in writing its reasons for
that certification. Fed. R. App. P. 24(a)(3)(A).
“Good faith” is an objective standard. Coppedge v. United States, 369 U.S. 438, 446
(1962); Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). An appeal is taken in “good faith”
if it seeks review of any issue that is not clearly frivolous, Coppedge, 369 U.S. at 446; Lee,
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209 F.3d at 1026, meaning that a reasonable person could suppose it to have at least some
legal merit, Lee, 209 F.3d at 1026; Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The
existence of any nonfrivolous issue on appeal is sufficient to require the court to grant the
petition for leave to proceed in forma pauperis. Dixon v. Pitchford, 843 F.2d 268, 270 (7th Cir.
1988).
Altman’s tardy motions had no meritorious basis for being granted. Moreover, no
reasonable person could suppose Altman’s appeal of the denials to have any merit, either.
Thus, pursuant to 28 U.S.C. §1915(a)(3), the court certifies that the appeal is not taken in
good faith and determines that Altman should not proceed in forma pauperis on appeal.
CONCLUSION
For the reasons set forth above,
IT IS ORDERED that a certificate of appealability is denied.
IT IS FURTHER ORDERED that petitioner’s request for in forma pauperis status on
appeal (Doc. 36) is denied on the merits, as the court certifies that the appeal has not been
taken in good faith.
Dated at Milwaukee, Wisconsin, this 16th day of February, 2017.
BY THE COURT
s/ C. N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. DISTRICT JUDGE
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