Ervin v. Hammond
Decision Date | 15 March 2013 |
Docket Number | No. 13-2136-STA-dkv,13-2136-STA-dkv |
Parties | LORENZO EDWIN ERVIN, Petitioner, v. JIM HAMMOND, Respondent. |
Court | U.S. District Court — Western District of Tennessee |
ORDER ON PENDING MOTIONS
ORDER DENYING PETITION PURSUANT TO 28 U.S.C. § 2254
ORDER DENYING CERTIFICATE OF APPEALABILITY
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
On March 4, 2013, Petitioner Lorenzo Edward Ervin, a resident of Memphis, Tennessee, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Ervin paid the habeas filing fee. (ECF No. 2.) On March 7, 2013, Ervin filed an emergency motion for a temporary restraining order and preliminary injunction and a motion seeking leave to proceed in forma pauperis. (ECF Nos. 3 & 4.) Because the filing fee has been paid, the motion for leave to proceed in forma pauperis is DENIED as moot. The Clerk shall record the respondent as Hamilton county Sheriff Jim Hammond.
Ervin has filed an Emergency Motion for a Temporary Restraining Order and Preliminary Injunction that would prohibitthe Hamilton County Sheriff's Office from arresting him until resolution of the instant Petition. (ECF No. 3.) Ervin believes he is subject to arrest because he has not paid court costs and fees for the conviction at issue. (Id. at 6, 7.) Because the Petition will be denied for the reasons stated infra, this motion is DENIED as moot.
On January 10, 2001, Ervin was convicted in the Criminal Court for Hamilton County, Tennessee, of disrupting a meeting, in violation of Tennessee Code Annotated § 39-17-306. At a sentencing hearing on February 26, 2001, Ervin received a suspended sentence of six months. (ECF No. 1 at 1.) Ervin appealed, and the Tennessee Court of Criminal Appeals affirmed. State v. Ervin, No. E2001-001147-CCA-R3-CD, 2003 WL 2154920 , appeal denied (Tenn. Oct. 6, 2003).1 Ervin did not file a post-conviction petition. (See ECF No. 1 at 3-4.)
In his federal habeas petition, Ervin raises the following issues:
A federal court may grant habeas relief to a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The "in custody" requirement of 28 U.S.C. § 2254(a) is evaluated as of the date on which the petition is filed. See, e.g., Carafas v. LaVallee, 391 U.S. 234 (1968) ( ); United States v. Zack, No. 98-1526, 1999 WL 96996 (6th Cir. Feb. 1, 1999) ( ). In this case, a suspended sentence of six months was imposed on February 26, 2001. That sentence had fully expired more than eleven years before Ervin filed the instant Petition and, therefore, the "in custody" requirement is not satisfied. See Maleng v. Cook, 490 U.S. 488, 492 (1989) ("in custody" requirement not satisfied for fully expired conviction despite possibility conviction might be used to enhance future sentence; Ward v.Knoblock, 738 F.2d 134, 138 (6th Cir. 1984) ( ); United States v. Onyango, Criminal Action No. 09-128-KSF, Civil Action No. 12-7195-KSF-JGW, 2012 WL 1940621, at *1-2 (E.D. Ky. Apr. 27, 2012) ( )(report and recommendation), adopted, 2012 WL 1940613 (E.D. Ky. May 29, 2012); United States v. Peatross, Criminal No. 06-20351, Civil No. 11-11089, 2011 WL 2618533, at *1 (E.D. Mich. June 30, 2011).
This conclusion is not altered by the fact that Ervin has refused to pay court costs. See, e.g., Thrower v. City of Akron, 43 F. App'x 767 (6th Cir. 2002) () ; Evans v. Birkett, No. 10-14787-BD, 2012 WL 86800, at *2 (E.D. Mich. Jan. 11, 2012) (); Bowling v. Holland, No. 1:11 CV 492, 2011 WL 5024171 (N.D. Ohio Aug. 23, 2011) ( )(report and recommendation), adopted, 2011 WL 5024170 (N.D. Ohio Oct. 20, 2011).
Because Petitioner has not satisfied the "in custody" requirement, his petition pursuant to 28 U.S.C. § 2254 is DENIED WITH PREJUDICE. Judgment shall be entered for Respondent.
There is no absolute entitlement to appeal a district court's denial of a § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 335 (2003); Bradley v. Birkett, 156 F. App'x 771, 772 (6th Cir. 2005). The Court must issue or deny a certificate of appealability ("COA") when it enters a final order adverse to a § 2254 petitioner. Rule 11, Rules Governing Section 2254 Cases in the United States District Courts. A petitioner may not take an appeal unless a circuit or district judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1).
A COA may issue only if the petitioner has made a substantial showing of the denial of a constitutional right, and the COA must indicate the specific issue or issues that satisfy the required showing. 28 U.S.C. §§ 2253(c)(2) & (3). A "substantial showing" is made when the petitioner demonstrates 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, 537 U.S. at 336; see also Henley v. Bell, 308 F. App'x 989, 990 (6th Cir. 2009) (per curiam) (same). A COA does not require a showing that the appeal will succeed. Miller-El, 537U.S. at 337; Caldwell v. Lewis, 414 F. App'x 809, 814-15 (6th Cir. 2011). Courts should not issue a COA as a matter of course. Bradley, 156 F. App'x at 773.
In this case, there can be no question that Petitioner's claims are meritless for the reasons previously stated. Because any appeal by Petitioner on the issues raised in this petition does not deserve attention, the Court DENIES a certificate of appealability.
The Court must also consider whether Defendant should be allowed to appeal this decision in forma pauperis, should he seek to do so. The United States Court of Appeals for the Sixth Circuit requires that all district courts in the circuit determine, in all cases where the appellant seeks to proceed in forma pauperis, whether the appeal would be frivolous. Twenty-eight U.S.C. § 1915(a)(3) provides that "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith."
Pursuant to the Federal Rules of Appellate Procedure, a non-prisoner desiring to proceed on appeal in forma pauperis must obtain pauper status under Fed. R. App. P. 24(a). See Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999). Rule 24(a) provides that if a party seeks pauper status on appeal, he must first file a motion in the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a) also provides that if the district court certifies that an appeal wouldnot be taken in good faith, or otherwise denies leave to appeal in forma pauperis, the litigant must file his motion to proceed in forma pauperis in the Court of Appeals. Fed. R. App. P. 24(a)(4)-(5).
The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). The test under 28 U.S.C. § 1915(a) for whether an appeal is taken in good faith is whether the litigant seeks appellate review of any issue that is not frivolous. Id. The same considerations that lead the Court to deny this § 2254 petition and to deny a certificate of appealablity also compel the conclusion that an appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in this matter by Defendant would not be taken in good faith and Defendant may not proceed on appeal in forma pauperis. Leave to proceed on appeal in forma pauperis is, therefore, DENIED.2
IT IS SO ORDERED this 15th day of March, 2013.
S. THOMAS ANDERSON
1. This was not Ervin's first conviction under that statute. In a prior case, the Tennessee Court of Criminal Appeals rejected Ervin's challenge to the constitutionality of the statute at issue. State v. Ervin, 40...
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