Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 1 of 16 PageID 158
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA,
Cv. No. 10-2301-STA-dkv
Cr. No. 08-20338-STA
ORDER GRANTING UNITED STATES’ MOTION TO DISMISS
(ECF No. 3)
ORDER DENYING & DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255
ORDER DENYING CERTIFICATE OF APPEALABILITY
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
On April 22, 2010, Defendant Howard Onry, Bureau of Prisons
registration number 22439-076, an inmate at the Federal
Correctional Center in Yazoo City, Mississippi, filed a pro se
motion under 28 U.S.C. § 2255. (Motion (“Mot.”), ECF No. 1.) On
July 8, 2010, the Court directed the United States to respond to
the motion to vacate. (Order, ECF No. 2.) On July 13, 2010, the
United States filed a motion to dismiss Defendant’s motion to
vacate. (Mot. to Dismiss, ECF No. 3.)
On October 15, 2008, Defendant Onry appeared before this judge
to plead guilty to a criminal information charging him with
possession of not less than fifty (50) kilograms of a mixture and
substance containing a detectable amount of cocaine with the intent
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 2 of 16 PageID 159
to distribute, in violation of 21 U.S.C. § 841(a)(1). Onry pled
guilty pursuant to a written plea agreement. The plea agreement
provided as follows:
The Defendant, Howard Onry, by and through his
counsel, Bill Anderson, knowingly and voluntarily agrees
with the United States Attorney for the Western District
of Tennessee, through the undersigned Assistant U.S.
Attorney, to plead guilty to count one of the information
filed herewith charging the Defendant with a violation of
21 U.S.C. § 841(a)(1).
Pursuant to Rule 11(c)(1)(B) of the Federal Rules of
Criminal Procedure and in consideration for the
Defendant’s plea of guilty, the United States will
recommend that the Defendant receive a three-level
reduction for acceptance of responsibility under U.S.
Sentencing Guidelines § 3E1.1, provided he continue to
exhibit acceptance of responsibility. The Defendant
understands that if in the opinion of the United States,
it is learned that the defendant has previously engaged
in, or if he engages in the future, in conduct
inconsistent with the acceptance of responsibility,
including, but not limited to participation in any
additional criminal activities between now and the time
of sentence this position could change. The Defendant
understands that if the Court does not accept these
recommendations the Defendant nevertheless has no right
to withdraw the plea.
Neither the United States nor any law enforcement
officer can or does make any promises or representations
as to what sentence will be imposed by the Court. The
Defendant understands that any discussions with his
attorney regarding a sentence are estimates about
possible outcomes, not promises or guarantees.
Should it be judged by the United States that the
Defendant violated any federal, state or local law, or
has engaged in any conduct constituting obstructing or
impeding justice within the meaning of U.S. Sentencing
Guidelines § 3C1.1 or has failed to make any court
appearances in this case, from the date of the
Information, United States v. Onry, No. 08-20338-STA-1 (W.D. Tenn.),
Criminal (“Cr.”) ECF No. 1; Waiver of Indictment, id., Cr. ECF No. 2; Min. Entry,
id., Cr. ECF No. 4.
Mem. of Plea Agreement, id., Cr. ECF No. 3.
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 3 of 16 PageID 160
Defendant’s signing of this plea agreement to the date of
the Defendant’s sentencing, or if the Defendant attempts
to withdraw the plea, or if he engages in any conduct
including, but not limited to, minimizing the scope of
his criminal involvement then the United States will be
released from its obligations and would become free to
argue for any sentence within statutory limits. Such a
breach by the Defendant would not release the Defendant
from this plea of guilty.
The Defendant understands that any statement made in
the course of the plea colloquy may be used against the
Defendant in any criminal prosecution. The Defendant
knowingly, intelligently and voluntarily waives any
objection based on Fed. R. Evid. 410.
The Defendant further understands and agrees the
special assessment is due and payable to the U.S.
District Clerk’s Office immediately following the
Based on the Defendant’s assistance to the United
States, it is contemplated that the United States may
recommend to the Court a downward departure pursuant to
U.S. Sentencing Guidelines § 5K1.1 and 18 U.S.C. §
3553(e). This would be solely within the discretion of
the United States and is not part of the plea agreement.
The Defendant understands that if the Defendant falsely
implicates an innocent person in the commission of a
crime, or exaggerates the involvement of any person in
the commission of a crime in order to appear cooperative,
or if the Defendant falsely minimizes the involvement of
any person in the commission of a crime in order to
protect that person then the United States will not
recommend a downward departure and the Defendant will be
in violation of the plea agreement.
voluntarily waives any rights to an appeal of his
conviction or sentence in this case.
This writing constitutes the entire Plea Agreement
between the Defendant and the United States with respect
to the plea of guilty. No additional promises
representations or inducements other than those
referenced in the Plea Agreement have been made to the
Defendant or to the Defendant’s attorney with regard to
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 4 of 16 PageID 161
this Plea, and none will be made or entered into unless
in writing and signed by all parties.3
The Court conducted a sentencing hearing on October 29, 2009,
at which Onry was sentenced to a term of imprisonment of two
hundred forty (240) months, to be followed by a five-year period of
supervised release. Judgment was entered on November 3, 2009.
Defendant did not file a notice of appeal.
On April 22, 2010, Onry filed this § 2255 motion alleging that
counsel provided ineffective assistance by “fail[ing] to file a
notice of appeal when told to do so by Movant.” (Mot., ECF No. 1
at 4.) The United States contended that Defendant’s motion should
be summarily dismissed because he waived his right to appeal either
his conviction or sentence as a part of his plea agreement. (Mot.
to Dismiss, ECF No. 3 at 2.) The United States relied on Arredondo
v. United States, 178 F.3d 778, 782 (6th Cir. 1999), stating that
no hearing is required when the petitioner’s allegations cannot be
accepted as true because they are contradicted by the record,
Mem. of Plea Agreement, id., Cr. ECF No. 3.
Min. Entry, id., Cr. ECF No. 36; Sentencing Hearing (“Hr’g”) Transcript
(“Tr.”), id., Cr. ECF No. 39-1.
The statutory sentencing range was not less than ten years, not more
than life. Onry’s offense level was 34 for not less than 50 grams of cocaine base.
Onry received a two-level reduction pursuant to the crack cocaine amendment that
went into effect in 2008 and also a two-level enhancement because a firearm was
possessed in conjunction with the drugs, resulting in an adjusted offense level of
34. Onry received full credit for acceptance of responsibility and the United States
recommended a sentence a the low end of the applicable guidelines range despite
Onry’s subsequent arrest for possession of a small amount of crack cocaine when he
was inadvertently released on bond during the pendency of the case. After the
application of Chapter 4 enhancements, Onry’s total offense level remained 34. Given
his criminal history category of VI, the guidelines sentencing range was 262-327
months. The Court imposed a sentence slightly below the guidelines.
Judgment (“J.”), United States v. Onry, No. 08-20338-STA-01, Cr. ECF No.
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 5 of 16 PageID 162
inherently incredible, or conclusions rather than statements of
fact. (Mot. to Dismiss, ECF No. 3 at 1.)
Defendant Onry’s motion to vacate and affidavit in support
were signed under penalty of perjury. (Mot., ECF No. 1 at 13,
Memorandum (“Mem.”), ECF No. 1-1 at 10-11.) Onry stated that he
requested his attorney to file an appeal both before and after
sentencing. (Mem., ECF No. 1-1 at 2.) Onry alleged that after he
reached his designated prison, he discovered that no notice of
appeal was on his criminal docket sheet. (Mem., ECF No. 1-1 at 3.)
In Campbell v. United States, 686 F.3d 353, 360 (6th Cir.
2012), the United States Court of Appeals for the Sixth Circuit
held that “even when a defendant waives all or most of his right to
appeal, an attorney who fails to file an appeal that a criminal
defendant explicitly requests has, as a matter of law, provided
ineffective assistance of counsel that entitles the defendant to
relief in the form of a delayed appeal.” Defendant’s allegations
could not be disproven by the records of the case. Although this
Court accepted the plea and conducted the sentencing hearing and
may rely on its own recollection, it was not privy to any
discussions about Defendant Onry’s desire to appeal before and
after sentencing. The Court determined that an evidentiary hearing
was necessary to resolve this matter and counsel was appointed for
Defendant. (Orders, ECF No. 5, ECF No. 10.)
On August 23 and 27, 2013, evidentiary hearings were held.
(Mins., ECF Nos. 19-20.) Defendant was represented at the hearings
by Attorney Ross Sampson. Defendant’s proof consisted of the
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 6 of 16 PageID 163
testimony of Defendant. (Mins., ECF No. 19.) The United States
presented the testimony of Defendant’s trial counsel, William C.
Anderson, Jr. (Mins., ECF No. 20.)
During the evidentiary hearing, Defendant attempted to raise
additional issues. At the time Onry did not take a direct appeal,
“an unappealed district court judgment of conviction [became]
‘final’ ten days after the entry of judgment, at least where the
defendant has not actually sought an extension of appeal time for
good cause or excusable neglect.” Sanchez-Castellano v. United
States, 358 F.3d 424 (6th Cir. 2004); see also United States v.
Cottage, 307 F.3d 494, 499 (6th Cir. 2002) (“when a § 2255 movant
does not pursue a direct appeal to the court of appeals, his
conviction becomes final either on the date that the judgment was
entered . . . or on the date on which the time for filing such
appeal expired”; describing the latter as the “majority view”);
Chandler v. United States, 22 F. App’x 399, 400 (6th Cir. 2001).
Because no direct appeal was taken, Onry’s conviction became final
on November 13, 2009. The running of the § 2255 statute of
limitations commenced on that date, and it expired one year later,
on November 15, 2010. 7
The mandate of Fed. R. Civ. P. 15(a), that a court freely
grant leave to amend when justice so requires, has been interpreted
to allow supplementation and clarification of claims initially
Anderson is now a Shelby County General Sessions Criminal Court Judge.
Under Fed. R. App. P. 26(a)(3), time periods do not include a last day
that falls on a Saturday, Sunday, or legal holiday. November 13, 2010, fell on a
Saturday. Therefore, the deadline was extended until Monday, November 15, 2010.
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 7 of 16 PageID 164
raised in a timely § 2255 motion. See Anderson v. United States,
No. 01-2476, 2002 WL 857742 at *3 (6th Cir. May 3, 2002); Oleson v.
United States, 27 Fed. App’x 566 (6th Cir. Dec. 14, 2001).
However, the time to amend to raise additional claims expired on
November 15, 2010. Once the statute of limitations has expired,
allowing amendment of a petition to allege additional grounds for
relief would defeat the purpose of the AEDPA. Oleson, 27 Fed.
App’x at 571 (citing United States v. Thomas, 221 F.3d 430, 436 (3d
Cir. 2000)(“[A] party cannot amend a § 2255 petition to add a
completely new claim after the statute of limitations has
expired.”)). The attempt to assert additional claims is untimely.
Those claims are barred by the statute of limitations and will not
be further addressed.
At the evidentiary hearing, Defendant Onry testified that,
after he was sentenced, “the judge asked were we going to file an
appeal. Mr. Anderson said no, and I said – while we were sitting
over there, I told him” in a private conversation to file an
appeal. (Tr. of Proceedings, ECF No. 22 at 53.) Onry testified
that when Anderson told him that he was not going to file an
appeal, “[m]y reaction was, why not? But I didn’t say it in so many
words, but I wanted to, but it just was at that time I was
wondering why not.” (Tr. of Proceedings, ECF No. 22 at 11.)
See also United States v. Pittman, 209 F.3d 314, 317-18 (4th Cir.
2000)(“The fact that amended claims arise from the same trial and sentencing
proceeding as the original motion does not mean that the amended claims relate back
for purposes of Rule 15(c). . . Such a broad view of ‘relation back’ would undermine
the limitations period set by Congress in the AEDPA” (citing United States v.
Duffus, 174 F.3d 333, 337 (3d Cir. 1999)).
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 8 of 16 PageID 165
Defendant stated that when [Anderson] told me that he wasn’t going
to file one, that’s when I realized that I had to do something on
my own” and “I filed ineffective assistance of counsel.” (Tr. of
Proceedings, ECF No. 22 at 13.) Defendant testified that he did not
have anyone file an appeal for him, did not request an expedited
appeal, and did not have further discussions with Anderson. (Tr.
of Proceedings, ECF No. 22 at 13.) Onry stated that he believed it
was ineffective assistance when Anderson said that he wasn’t going
to file an appeal because “him being my attorney . . . he should .
. . have filed one on my behalf, me asking since he is my
attorney.” (Tr. of Proceedings, ECF No. 22 at 14.)
In response to questioning by the Court, Defendant testified
that when Anderson told the Court he was not going to file an
appeal for Defendant Onry, Defendant said, “Mr. Anderson, will you
file an appeal for me? Then he told me, ‘No.’” Onry stated that he
said “I would like to file an appeal. Have you filed an appeal for
me?” and Anderson replied, “no, that I couldn’t file an appeal” and
“[t]hat’s when I filed the 2255 motion for ineffective counsel.”
(Tr. of Proceedings, ECF No. 22 at 22-23.) Defendant testified
that Anderson tried to shake his hand at the end of the proceedings
and Defendant refused because he “was upset.” (Tr. of Proceedings,
ECF No. 22 at 23.)
During cross-examination, Onry admitted that he did not hire
Anderson, who was retained counsel, to file an appeal. (Tr. of
Proceedings, ECF No. 22 at 39.) Onry testified that he did not
understand his plea agreement, that Anderson did not explain the
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 9 of 16 PageID 166
plea agreement in detail, and that Anderson did not go over the
presentence report with him. (Tr. of Proceedings, ECF No. 22 at 40-
43.) Defendant admitted that he never told the Court that he
wanted to appeal. (Tr. of Proceedings, ECF No. 22 at 44.)
Judge Anderson testified that he was a criminal defense
attorney for twenty-eight years practicing in state and federal
courts. (Tr. of Proceedings, ECF No. 22-1 at 6.) Anderson
recalled that his representation of Defendant Onry began in state
court where Onry was initially charged and continued when the
federal government picked up the prosecution. (Tr. of Proceedings,
ECF No. 22-1 at 7.) Anderson testified that he was contacted and
retained by a member of Onry’s family to represent Onry at trial
and was not retained to file an appeal. (Tr. of Proceedings, ECF
No. 22-1 at 8.)
Anderson explained that his usual practice with a defendant
who was offered a plea was to “read it, have them read it, explain
every provision of it, ask if they understand; if they don’t, try
to clarify anything that they don’t understand, and then have them
sign it and I sign it. (Tr. of Proceedings, ECF No. 22-1 at 8.)
Anderson testified that Onry’s plea agreement contained a waiver of
appeal and he explained it to Onry. (Tr. of Proceedings, ECF No.
22-1 at 8-9.) Anderson stated that Onry had a considerable
criminal history and was classified as a career offender, yet by
pleading guilty, Onry received a sentence that was below the
minimum guidelines range and significantly below the top end of the
range. (Tr. of Proceedings, ECF No. 22-1 at 9.)
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 10 of 16 PageID 167
Anderson was provided with a copy of Defendant’s sentencing
transcript to refresh his recollection about his conversation with
the Court about filing an appeal. (Tr. of Proceedings, ECF No. 22-
1 at 9-10.) That portion of the transcript states:
What about appeal in this matter?
That was waived by the plea agreement,
(Tr. of Sentencing, United States v. Onry, No. 08-20338-STA-1 (W.D.
Tenn.), Cr. ECF No. 39-1 at 26.) Anderson did not recall Onry
afterwards telling Anderson to appeal and testified that even if
Onry did, “I would have told him that he had already waived that
appeal in his plea agreement. But I do not recall him asking me
that.” (Tr. of Proceedings, ECF No. 22-1 at 10-11.) Anderson’s
file contained no letters indicating that Defendant contacted him
and asked him to file an appeal. (Tr. of Proceedings, ECF No. 22-1
On cross-examination, Anderson testified that it took a lot of
time and effort to explain things “to a point where I felt like
[Onry] undertood it.” (Tr. of Proceedings, ECF No. 22-1 at 18.)
Anderson stated that communication with Onry was no more
challenging than most, but
was challenging because it was difficult to make Mr. Onry
understand that he was looking at a tremendous amount of
prison time based on his record and the federal
guidelines, and he had a hard time wrapping his head
around that, that, you know, because of this amount of
dope in a house that he is caught with and he’s looking
at being a career offender and looking at up to life in
prison and having a pistol in the house that he claimed
to be his. He didn’t understand why - he had been in the
dope business a long time, he had many convictions for
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 11 of 16 PageID 168
the dope business, it had been minor prison times, and
now all of a sudden he’s looking at the possibility of
life as a career offender. He had a real hard time
understanding that. He had a real hard time understanding
initially how the state court charged him and it could
end up in federal court. He felt that was a problem. But,
yes, he had - it was challenging in that aspect. It
wasn’t challenging making him understand, for instance-
(Tr. of Proceedings, ECF No. 22-1 at 18-19.) Anderson testified
that Onry received a sentence that was twenty-two months below the
bottom end of the applicable guidelines range. (Tr. of Proceedings,
ECF No. 22-1 at 19.)
The United States requested that the transcripts of
Defendant’s change of plea and sentencing hearings be made exhibits
in this action. In particular, the United States directed the
Court’s attention to the following colloquies from the change of
Have you had an opportunity to discuss
the charges against you with your
Yes, I did.
Yes, Your Honor.
. . .
And you also will be giving up your right
to appeal any conviction in this matter,
do you understand that?
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 12 of 16 PageID 169
. . .
Just pass it to Mr. Onry. Mr. Onry,
that’s a document that’s titled Plea
Agreement. And on the second page I
believe it is, or maybe it is the third
page, it appears to have your signature.
Did you sign that document?
Yes, I did, Your Honor.
Did you have a chance to discuss it with
Mr. Anderson before you signed it?
Yes, I did.
Did he explain to you what the contents
of the agreement were?
Yes, he did, Your Honor.
Did you understand his explanation of
what was contained in the agreement?
(Tr. of Change of Plea, United States v. Onry, No. 08-20338-STA-1
(W.D. Tenn.), Cr. ECF No. 39 at 4, 7, 9-10.)
An attorney who represents a federal criminal defendant and
who fails to file a timely notice of appeal after a request by his
client is ineffective, in violation of the client’s Sixth Amendment
rights, without regard to the analysis of prejudice normally
conducted under Strickland v. Washington, 466 U.S. 668, 687 (1984).
See, e.g. Roe v. Flores-Ortega, 528 U.S. 470, 483, 120 S. Ct. 1029,
1038-39, 145 L. Ed. 2d 985 (2000)(holding that appeal in which
defendant is completely denied counsel in violation of the Sixth
Amendment is presumptively unreliable because no presumption of
reliability can be accorded to proceedings that “never took place”
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 13 of 16 PageID 170
and prescribing that remedy is delayed appeal); Ludwig v. United
States, 162 F.3d 456, 459 (6th Cir. 1998)(holding that “failure to
perfect an appeal, in derogation of a defendant's actual request,
is a per se violation of the Sixth Amendment”).
Defendant Onry was displeased with the sentence the Court
imposed. However, Onry’s selective memory of testimony during the
plea and sentencing proceedings does not comport with the written
transcripts. Onry received a significant benefit from his guilty
plea. Anderson’s testimony that he did not recall Onry directing
him to take an appeal and, if Onry had made the request, that he
would have told Onry that the appeal was waived is credible and
consistent with the record before the Court. Furthermore, Onry’s
hearing testimony demonstrates that he knew he had waived his right
to appeal, he knew that Anderson was not going to file an appeal,
and he knew he did not retain Anderson to file an appeal. Onry
took no action to perfect his appeal on his own and waited over
five months before filing this motion to vacate. Because Onry did
not direct Anderson to pursue an appeal, Anderson clearly was not
deficient in failing to file a notice of appeal. The United States’
motion to dismiss is GRANTED and Defendant’s motion is DENIED. The
Clerk shall enter judgment for the United States.
Twenty-eight U.S.C. § 2253(a) requires the district court to
evaluate the appealability of its decision denying a § 2255 motion
and to issue a certificate of appealability (“COA”) "only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see also Fed. R.
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 14 of 16 PageID 171
App. P. 22(b). No § 2255 movant may appeal without this
In Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 146 L.
Ed. 2d 542 (2000), the Supreme Court stated that § 2253 is a
codification of the standard announced in Barefoot v. Estelle, 463
U.S. 880, 893, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983), which
requires a showing 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.’” Slack, 529
U.S. at 484, 120 S. Ct. at 1603-04 (quoting Barefoot, 463 U.S. at
893 & n.4, 103 S. Ct. 3383).
The Supreme Court has cautioned against undue limitations on
the issuance of COAs:
[O]ur opinion in Slack held that a COA does not require
a showing that the appeal will succeed. Accordingly, a
court of appeals should not decline the application of a
COA merely because it believes the applicant will not
demonstrate an entitlement to relief. The holding in
Slack would mean very little if appellate review were
denied because the prisoner did not convince a judge, or,
for that matter, three judges, that he or she would
prevail. It is consistent with § 2253 that a COA will
issue in some instances where there is no certainty of
ultimate relief. After all, when a COA is sought, the
whole premise is that the prisoner “has already failed in
Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S. Ct. 1029, 1039,
154 L. Ed. 2d 931 (2003) (quoting Barefoot, 463 U.S. at 893 n.4,
103 S. Ct. 3383). Thus,
[a] prisoner seeking a COA must prove “something more
than the absence of frivolity” or the existence of mere
“good faith” on his or her part. We do not require
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 15 of 16 PageID 172
petitioner to prove, before the issuance of a COA, that
some jurists would grant the petition for habeas corpus.
Indeed, a claim can be debatable even though every jurist
of reason might agree, after the COA has been granted and
the case has received full consideration, that petitioner
will not prevail.
Id. at 338, 123 S. Ct. at 1040 (quoting Barefoot, 463 U.S. at 893,
103 S. Ct. 3383); see also id. at 342, 123 S. Ct. at 1042
(cautioning courts against conflating their analysis of the merits
with the decision of whether to issue a COA; “The question is the
debatability of the underlying constitutional claim, not the
resolution of that debate.”).9
In this case, for the reasons previously stated, the Defendant
cannot present a question of some substance about which reasonable
jurists could differ. The Court therefore DENIES a certificate of
The Sixth Circuit has held that the Prison Litigation Reform
Act of 1995, 28 U.S.C. § 1915(a)-(b), does not apply to appeals of
orders denying § 2255 motions. Kincade v. Sparkman, 117 F.3d 949,
951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a
§ 2255 case, and thereby avoid the appellate filing fee required by
28 U.S.C. §§ 1913 and 1917, the prisoner must obtain pauper status
pursuant to Fed. R. App. P. 24(a). Kincade, 117 F.3d at 952. Rule
24(a) provides that a party seeking pauper status on appeal must
first file a motion in the district court, along with a supporting
The Supreme Court also emphasized that “[o]ur holding should not be
misconstrued as directing that a COA always must issue.” Miller-El, 537 U.S. at 337,
123 S. Ct. at 1039. Instead, the COA requirement implements a system of
“differential treatment for those appeals deserving of attention from those that
plainly do not.” Id., 123 S. Ct. at 1040.
Case 2:10-cv-02301-STA-dkv Document 23 Filed 09/20/13 Page 16 of 16 PageID 173
affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a) also
provides that if the district court certifies that an appeal would
not be taken in good faith, or otherwise denies leave to appeal in
forma pauperis, the prisoner must file his motion to proceed in
forma pauperis in the appellate court. See Fed. R. App. P. 24(a)
In this case, for the same reasons the Court denies a
certificate of appealability, the Court determines that any appeal
would not be taken in good faith. It is therefore CERTIFIED,
pursuant to Fed. R. App. P. 24(a), that any appeal in this matter
would not be taken in good faith, and leave to appeal in forma
pauperis is DENIED. 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 Sixth
Circuit Court of Appeals within thirty (30) days.
IT IS SO ORDERED this 20 day of September, 2013.
s/S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE