NARVAEZ, LUIS M. v. USA

Filing 13

ORDER granting leave to proceed ifp on appeal and 8 Motion for Certificate of Appealability. Signed by Chief Judge Barbara B. Crabb on 7/31/2009. (llj)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------U N IT E D STATES OF AMERICA, ORDER Plaintiff, 09-cv-222-bbc 03-cr-81-jcs v. L U IS M. NARVAEZ, D efendan t. ---------------------------------------------

D efendan t Luis M. Narvaez has filed a notice of appeal, application for a certificate o f appealability and an accompanying memorandum appealing the court's May 11, 2009 judgm ent denying his motion for post-conviction relief brought pursuant to 28 U.S.C. § 2255 . Defendant has not paid the $455 filing fee, which makes it necessary to decide w hether he is entitled to proceed on appeal in forma pauperis. According to 28 U.S.C. § 1915(a), a defendant who is found eligible for courtapp oin ted counsel in the district court proceedings may proceed on appeal in forma pauperis w i th ou t further authorization "unless the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed." 1

D efendant had court-appointed counsel during the criminal proceedings against him and I do not intend to certify that his appeal is not taken in good faith. Defendant's challenge to his sentence is not wholly frivolous. A reasonable person could suppose that it has some m erit. Cf., Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). Therefore, I will grant him leave to proceed on appeal in forma pauperis. As to the certificate of appealability, a certificate shall issue "only if the applicant has m a d e a substantial showing of the denial of a constitutional right." § 2253(c)(2). Before issu in g a certificate of appealability, a district court must find that the issues the applicant w ishes to raise are ones that "are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve enco uragem ent to proceed further." Barefoot v. Estelle, 463 U.S 880, 893 n.4 (1983). "[T]he standard governing the issuance of a certificate of appealability is not the same as the standard for determining whether an appeal is in good faith. It is more demanding." Walker v. O'Brien, 216 F.3d 626, 631 (7th Cir. 2000). Defendant contends that after the recent decisions in Begay v. United States, ___ U.S. _ __ , 128 S. Ct. 1581 (2008) and Chambers v. United States, ___ U.S. 129 S. Ct. 687 (2 0 0 9), he can no longer be considered a career offender because his prior conviction for escape was not a violent felony. In deciding the motion, I found that Begay and Chambers are not retroactive and do not apply to defendant's case, which became final before the new 2

r u le was announced. Although I believe that it was proper to deny defendant's § 2255 m otio n, I cannot say that a reasonable judge would not make a different decision. Therefore, I will issue a certificate of appealability.

ORDER IT IS ORDERED that defendant Luis M. Narvaez's request for leave to proceed in forma pau peris on appeal and his request for a certificate of appealability are GRANTED.

Entered this 31s t day of July, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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