Homelsey, Charles v. Dittman, Michael

Filing 48

ORDER granting 37 Motion for Certificate of Appealability; granting 41 , 47 Motion for Leave to Appeal in forma pauperis. Petitioner may have until May 19, 2017, in which to submit a check or money order made payable to the clerk of court in the amount of $76.89. Signed by District Judge Barbara B. Crabb on 5/3/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE W ESTERN DISTRICT OF W ISCONSIN
C HARLES J. H OM ELSEY ,
aka CHARLES J. MAYBERRY,
ORDER
Petitioner,
v.

16-cv-47-bbc

MICHAEL DITTMAN,
Respondent.

On February 24, 2017, the court dismissed the habeas petition filed by petitioner
Charles J. Homelsey pursuant to 28 U.S.C. § 2254.

Petitioner now asks the court for a

certificate of appealability (dkt. #37) and for permission to proceed in forma pauperis on
appeal (dkt. #47).

Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue
or deny a certificate of appealability when entering a final order adverse to a petitioner.
To obtain a certificate of appealability, the applicant must make a "substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S.
274, 282 (2004). This means 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 v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations and citations
omitted).

When, as in this case, “the district court denies a habeas petition on

procedural grounds without reaching the prisoner's underlying constitutional claim, a
[certificate of appealability) should issue when the prisoner shows, at least, that jurists of

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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 v. McDaniel, 529 U.S. 473, 484

(2000). Thus, in determining whether a certificate of appealability should issue in this
case, tcourt must consider both the procedural holding and the underlying constitutional
claims. Id. at 484-85.
Although it is a close question, I conclude that petitioner is entitled to a certificate of
appealability.

Although petitioner has not been specific about his allegations that he was

diligently seeking the assistance of other inmates to help him file a federal habeas petition
and that he was prevented from doing so by his mental impairments and institutional
barriers, his allegations could persuade a jurist of reason to apply the doctrine of equitable
tolling, as well as to allow his untimely petition. As for the underlying constitutional claim, I
concluded in reviewing the petition initially that petitioner’s claim that his trial and appellate
lawyers were ineffective for failing to raise the issue of his incompetence to be tried was
sufficient to state a valid constitutional claim.

Accordingly, both conditions for issuing a

certificate of appealability have been met.
Petitioner also has submitted a motion for leave to proceed in forma pauperis on
appeal along with a certified trust fund account statement to support his request. I will grant
petitioner’s request for leave to proceed in forma pauperis for the reasons set forth below.
Petitioner’s appeal is not subject to the 1996 Prison Litigation Reform Act. W alker v.
O'Brien, 216 F.3d 626, 628-629 (7th Cir. 2000) (“the PLRA does not apply to any requests
for collateral relief under 28 U.S.C. §§ 2241, 2254, or 2255"). Nevertheless, in determining
whether a petitioner is eligible for indigent status on appeal under 28 U.S.C. § 1915, the

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court must find both that the petitioner does not have the means to pay the $505 fee for
filing his appeal and that the appeal is taken in good faith. 28 U.S.C. § 1915(a)(1) and (3).
I do not intend to certify that petitioner’s appeal is not taken in good faith.
In determining whether a habeas corpus petitioner is eligible for pauper status, the
court applies the formula set out in 28 U.S.C. § 1915(b)(1).

From petitioner’s trust fund

account statement, I conclude that he qualifies for indigent status.

Further, I assess

petitioner an initial partial payment of the $505 fee for filing his appeal in the amount of
$76.89.
Finally, in his request for a certificate of appealability, petitioner asks the court to halt
the destruction or photocopying of jailhouse lawyer Oscar McMillian's legal property, hold an
evidentiary hearing regarding the seizure of McMillian's property and permit McMillian to
meet in-person with petitioner.

These requests are beyond the scope of a certificate of

appealability or even the habeas petition, for that matter.
them.

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Accordingly, I do not address

ORDER
IT IS ORDERED that:
1. Petitioner’s request for a certificate of appealability (dkt. # 37) is GRANTED; and
2. Petitioner’s request for leave to proceed in forma pauperis is GRANTED.

Petitioner may have until May 19, 2017, in which to submit a check or money order
made payable to the clerk of court in the amount of $76.89.

If by May 19, 2017,

petitioner fails to pay the initial partial payment or explain his failure to do so, then I will
advise the court of appeals of his noncompliance in paying the assessment so that it may
take whatever steps it deems appropriate with respect to this appeal.
Entered this 3d day of May, 2017.

BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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