Brown v. Booker

• Decision Date: 27 November 1985
• Docket Number: Civ. A. 85-0449-R.
• Citation: 622 F. Supp. 993
• Parties: James Arthur BROWN, Jr. v. Edward L. BOOKER, Warden, et al.
• Court: U.S. District Court — Eastern District of Virginia

622 F. Supp. 993

James Arthur BROWN, Jr. v. Edward L. BOOKER, Warden, et al.

Civ. A. 85-0449-R.

United States District Court, E.D. Virginia, Richmond Division.

November 27, 1985.

James Arthur Brown, Jr., pro se.

Frank S. Ferguson, Asst. Atty. Gen., Richmond, Va., for defendants.

OPINION AND ORDER

WARRINER, District Judge.

On 19 September 1985, this Court denied petitioner's petition for a writ of habeas corpus under 28 U.S.C. § 2254. On 30 September petitioner filed a timely notice of appeal from that decision as well as a motion for leave to proceed on appeal in forma pauperis. As a result, the Court is presented with the question of whether petitioner should be allowed to proceed on appeal in forma pauperis. For reasons set out below, the Court believes it is also presented with the question of whether this Court should issue the certificate of probable cause required by 28 U.S.C. § 2253.

Appeal In Forma Pauperis

Because this Court previously granted petitioner leave to proceed in his habeas action in forma pauperis, he "... may proceed on appeal in forma pauperis without further authorization unless ... the district court shall certify that the appeal is not taken in good faith." Federal Rule of Appellate Procedure 24(a). See also 28 U.S.C. § 1915(a), "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." As Rule 24(a) indicates, absent this Court's finding that petitioner's appeal is not taken in "good faith", he is automatically entitled to proceed on appeal in forma pauperis. Therefore, for petitioner to so proceed, it is not necessary for this Court to "grant" his motion; his in forma pauperis status will continue if this Court simply determines not to retract it.

Determining what constitutes the "good faith" required by Federal Rule of Appellate Procedure 24(a) and 28 U.S.C. § 1915(a) need not involve a subjective inquiry into the appellant's intent. His "good faith" may be demonstrated by the presentation for "appellate review of any issue not frivolous." Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962). In Liles v. South Carolina Dept. of Corrections, 414 F.2d 612 (4th Cir.1969), the Fourth Circuit Court of Appeals, interpreting this standard, cautioned that a lack of "good faith" is not shown by the mere fact "that the appeal lacks merit, but that the issues raised are so frivolous that the appeal would be dismissed in the case of a non-indigent litigant." Id. at 614, fn. 1. Applying the above standard, the Court does not believe that petitioner's appeal is so frivolous as to warrant a finding that it is not in "good faith." Because, I am unable to certify that the appeal is not taken in good faith, petitioner may proceed on appeal in forma pauperis.

Certificate of Probable Cause

Petitioner's notice of appeal invokes the requirements of 28 U.S.C. § 2253¹ which provides that an appeal from the denial of a petition for a writ of habeas corpus under 28 U.S.C. § 2254 may only be taken if "the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause".

Section 2253 is silent as to the procedure that should be followed when the district judge decides that it is not appropriate to issue a certificate of probable cause. It has been the practice of this Court to issue an order respecting the requirements of § 2253 only in those cases where the appealing petitioner specifically sought the certificate and the Court felt it justified. When, as is the usual practice, petitioners ignore the provisions of § 2253 before the district court, I have done nothing. In part, this practice has developed because, as § 2253 makes clear, responsibility for granting or withholding the certificate does not rest upon the district judge alone; the statute provides that the certificate may also be granted by a judge of the Court of Appeals or a justice of the Supreme Court. Because § 2253 seems to allow for the above individuals engaging in an independent and de novo inquiry into whether to grant or withhold the certificate, rather than appellate review of this Court's decision, there seemed little point in issuing any statement as to this Court's reasons for withholding the certificate. Also, I thought my opinion in the case would sufficiently reveal my view as to the merits of an appeal. However, a number of circuit court opinions² and the Supreme Court's recent decision in Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), have directed this Court's attention to the requirements of Fed.R.App.P. 22(b) and have led me to conclude that my previous practice has been in error.

Section 2253 establishes that a certificate of probable cause must be obtained before an appeal may be taken; Fed.R.App.P. 22 reiterates this requirement and delineates the procedure to be followed by the various judges potentially involved in making the determination mandated by § 2253. Fed.R. App.P. 22(b) provides:

In a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of probable cause. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of probable cause or state the reasons why such a certificate should not issue. The certificate or the statement shall be forwarded to the court of appeals with the notice of appeal and the file of the proceedings in the district court. If the district judge has denied the certificate, the applicant for the writ may then request the issuance of the certificate by a circuit judge. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals. If an appeal is taken by a state or its representative, a certificate of probable cause is not required.

The sequence contemplated by the Rule is as follows: even without a formal motion or request for the certificate, a petitioner's notice of appeal from the denial of his petition under § 2254 must be brought to the attention of the district judge. The filing of the notice of appeal itself requires the district judge to make a determination of whether to issue a certificate of probable cause. If he grants the certificate, the court of appeals is bound by his decision and must consider the appeal on its merits. See Nowakowski v. Maroney, 386 U.S. 542, 543, 87 S.Ct. 1197, 1198-99, 18 L.Ed.2d 282 (1967). If, on the other hand, the district judge determines not to issue the certificate, he must state his reasons for declining to do so. The record is then forwarded to the Court of Appeals. At this point, the petitioner may formally petition a circuit judge to grant the certificate. If, by mistake, he addresses his request to the Court of Appeals, which as an entity is not empowered by § 2253 to grant the certificate, the request shall be construed to be addressed to an individual judge of that Court. The penultimate sentence of this section, taken in context, establishes that even if no formal request is made, the notice of appeal itself will automatically act, as it did earlier in regard to the district judge, as a request for the certificate, addressed, this time, "to the judges of the Court of Appeals." If the designated judge of the Court of Appeals refuses to issue a certificate of probable cause, the appeal is ended.

The procedural structure established by Rule 22 clarifies the requirements of § 2253 in a number of important respects. Whereas § 2253 seems to permit the district judge and the judges of the court of appeals to simultaneously and independently make the determination of whether to issue or withhold the certificate, Rule 22(b) establishes an obligatory sequence of interlocking procedural steps that begins with the district judge's initial determination of whether the certificate should issue. Among other things, the Rule ensures that: (1) an appellant need take no action beyond filing a notice of appeal to obtain a ruling on the certificate; (2) a judge of the court of appeals must await the initial ruling by the district judge before making his own decision as to whether to grant or withhold the certificate; and, (3) the appellee is uninvolved at this stage.

Within this procedural framework, the Advisory Committee Notes following the Rule suggest two primary purposes served by the requirement that the district judge "state his reasons" when he decides not to issue the certificate. The first is to ensure that "the matter of the certificate will not be overlooked" by the district judge. Since the district judge's decision to issue the certificate binds the court of appeals to a consideration of the merits of the appeal, it is important that an appellant's "first level right to a ruling by the district judge" not be forgotten or foreclosed by an interim denial by a judge of the court of appeals. Stewart v. Beto, 454 F.2d 268, 269 (5th Cir.1971).

This purpose would, of course, be served adequately by merely requiring the district judge to issue an order memorializing his decision not to grant the certificate. The Rule goes significantly beyond this when it demands that the District Judge "state the reasons" for his denial of the certificate. The Advisory Committee Notes suggest that a function of this requirement is to ensure that the judge or judges of the court of appeals will have before them "in any subsequent application," a short summary of the reasons for denial to aid in their determination of whether to issue the certificate. Besides ensuring that...