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Range v. Berghuis

United States District Court, E.D. Michigan, Southern Division

June 3, 2015

THOMAS RANGE, #190180, Petitioner,
v.
MARY BERGHUIS, Respondent.

ORDER DENYING PETITIONER’S APPLICATION TO PROCEED IN FORMA PAUPERIS ON APPEAL

ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

Michigan prisoner Edward D. Johnson (“Petitioner”) filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction for second-degree home invasion for which he was sentenced to 15 to 30 years imprisonment as a fourth habitual offender. He raised claims concerning the late addition of an expert witness, the conduct of the prosecutor, the identification procedures, the sufficiency of the evidence, the non-disclosure of evidence, the admission of arrest evidence, the accuracy of the trial transcripts, a delay in arraignment, and the effectiveness of trial and appellate counsel. On April 30, 2015, the court denied the petition and declined to issue a certificate of appealability. Petitioner filed a claim of appeal. The matter is now before the court on Petitioner’s application to proceed in forma pauperis on appeal.

The standard for granting an application for leave to proceed in forma pauperis on appeal is a lower standard than the standard for granting a certificate of appealability. Foster v. Ludwick, 208 F.Supp.2d 750, 764 (E.D. Mich. 2002). Whereas a certificate of appealability may only be granted if petitioner makes a substantial showing of the denial of a constitutional right, a court may grant leave to proceed in forma pauperis if it finds that an appeal is being taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a); Foster, 208 F.Supp.2d at 764-65. “Good faith” requires a showing that the issues raised are not frivolous; it does not require a showing of probable success on the merits. Foster, 208 F.Supp.2d at 765. Having considered the matter, the court concludes that an appeal of the court’s decision would be frivolous and cannot be taken in good faith.

Accordingly, IT IS ORDERED that Petitioner’s application to proceed in forma pauperis on appeal [Dkt. # 28] is DENIED.


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