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BEARD v. U.S., 2:09-CR-00033. (2015)

Court: District Court, S.D. Ohio Number: infdco20150108c89 Visitors: 16
Filed: Jan. 07, 2015
Latest Update: Jan. 07, 2015
Summary: OPINION AND ORDER GREGORY L. FROST, District Judge. On October 14, 2014, the Court issued an Order denying Petitioner's Motion to Reopen Proceedings pursuant to Rule 60(b) of the Federal Rules of Procedure. (ECF No. 124.) This matter is before the Court on Petitioner's December 19, 2014, Notice of Appeal, which the Court construes as a request for a certificate of appealability. For the reasons that follow, Petitioner's request for a certificate of appealability, (ECF No. 125), is GRANTE
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OPINION AND ORDER

GREGORY L. FROST, District Judge.

On October 14, 2014, the Court issued an Order denying Petitioner's Motion to Reopen Proceedings pursuant to Rule 60(b) of the Federal Rules of Procedure. (ECF No. 124.) This matter is before the Court on Petitioner's December 19, 2014, Notice of Appeal, which the Court construes as a request for a certificate of appealability. For the reasons that follow, Petitioner's request for a certificate of appealability, (ECF No. 125), is GRANTED.

On March 27, 2013, the Court dismissed Petitioner's motion to vacate, set aside or correct sentence as barred by the one-year statute of limitations under 28 U.S.C. § 2255(f). (ECF No. 103.) Petitioner seeks reconsideration of the final judgment of dismissal. He argues that equitable tolling of the statute of limitations should apply, that he has been diligent in pursuing his claims, and that he is actually innocent of the crimes that served as the basis for the enhancement of his sentence as a career criminal. The Court denied Petitioner's Motion to Reopen Proceedings as failing to provide a basis for relief.

When a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This statutory standard codifies the Supreme Court's holding in Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529 U.S. 473, 484 (2000). To make a substantial showing of the denial of a constitutional right, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved differently, or that the issues presented deserved encouragement to proceed further. Id.

Where the Court dismisses a claim on procedural grounds, as here, Petitioner must show "that jurists of 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" to obtain the certificate of appealability. Slack v. McDaniel, 529 U.S. at 484-85. Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." The Court may first "resolve the issue whose answer is more apparent from the record and arguments." Id.

The Court is persuaded that Petitioner has met the standard set forth in Slack v. McDaniel to obtain a certificate of appealability. This Court therefore certifies the following issue for appeal:

Is the motion to vacate, set aside or correct sentence barred by the one-year statute of limitations under 28 U.S.C. § 2255(f)?

The Court notes that Petitioner has neither paid the $455.00 filing fee for his appeal nor filed a request to proceed in forma pauperis on appeal. Under Rule 24(a) of the Federal Rules of Appellate Procedure, a party seeking to proceed in forma pauperis on appeal must move to do so in the district court. A party may proceed in forma pauperis on appeal without district court approval if the party proceeded in forma pauperis in the district court, and the district court certifies that the party can take an appeal in good faith. Fed. R.App. P. 24(a)(3).

Petitioner is an incarcerated prisoner for whom the Court has previously appointed counsel on his behalf. Additionally, this Court declines to certify that the appeal is not taken in good faith. Petitioner therefore may proceed in forma pauperis on appeal.

IT IS SO ORDERED.

Source:  Leagle

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