1 See Luberda v. Trippett, 211 F. 3d 1004, 1006 (6th Cir. 2000); Hilliard v. United

States, 157 F. 3d 444, 447 (6th Cir. 1998). 

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAVID TYRAN,

Petitioner,

CASE NO. 2:09-CV-10540

v. HONORABLE ARTHUR J. TARNOW

UNITED STATES DISTRICT JUDGE 

KENNETH T. McKEE,

Respondent.

__________________________________/

OPINION AND ORDER DENYING A CERTIFICATE OF APPEALABILITY 

AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

On November 2, 2009, the Court issued an opinion and order summarily

dismissing the petition for writ of habeas corpus, on the ground that petitioner failed to

comply with the statute of limitations contained in 28 U.S.C. § 2244(d)(1).

Petitioner has now filed a notice of appeal, which this Court construes as a request for a

certificate of appealability. 1

 Petitioner has also filed an application for leave to appeal

in forma pauperis. For the reasons stated below, the Court will deny the motion for a

certificate of appealability, but will grant petitioner leave to appeal in forma pauperis.

An appeal may not be taken from the final order of a district court denying a

motion filed pursuant to 28 U.S.C. § 2254 unless a certificate of appealability issues. 28

U.S.C. § 2253(c)(1)(A). In order to issue a certificate of appealability, the district court

must find that the petitioner has made a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). 

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When a district court denies a habeas petition on procedural grounds without

reaching the prisoner’s underlying constitutional claims, a certificate of appealability

should issue, and an appeal of the district court’s order may be taken, if the petitioner

shows that jurists of reason would find it debatable whether the petitioner 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. Slack v.

McDaniel, 529 U.S. 473, 484 (2000). When a plain procedural bar is present and the

district court is correct to invoke it to dispose of the case, a reasonable jurist could not

conclude either that the district court erred in dismissing the petition or that the petition

should be allowed to proceed further. In such a circumstance, no appeal would be

warranted. Id. 

For reasons stated in greater detail in the opinion and order of summary

dismissal, this Court found that the instant petition was untimely, because petitioner did

not file his habeas petition or any state post-conviction motion which would toll the

limitations period within one year of his conviction becoming final on April 29, 1997. 

Although petitioner alleged that he had newly discovered evidence from a witness to

support an intoxication defense, this Court concluded that the commencement of the

one year limitations period was not delayed pursuant to 28 U.S.C. § 2244(d)(1)(D),

because petitioner failed to attach the affidavit of this unnamed witness to any of his

pleadings, did not indicate when, or even if, the witness signed an affidavit, nor did he

offer any explanation how the factual predicate of his claim could not have been

discovered earlier or what steps he took to discover the factual basis for this claim. 

Finally, the Court concluded that petitioner was not entitled to equitable tolling of the

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one year limitations period, because he failed to argue that circumstances of his case

warranted equitable tolling, nor did he present any new, reliable evidence to establish

that he was actually innocent of the crime.

The Court will deny petitioner a certificate of appealability, because reasonable

jurists would not find it debatable whether this court was correct in determining that

petitioner had filed his habeas petition outside of the one year limitations period. See

Grayson v. Grayson, 185 F. Supp. 2d 747, 753 (E.D. Mich. 2002).

Although this Court has denied a certificate of appealability to petitioner, the

standard for granting an application for leave to proceed in forma pauperis (IFP) is a

lower standard than the standard for certificates of appealability. See Foster v. Ludwick,

208 F. Supp. 2d 750, 764 (E.D. Mich. 2002)(citing United States v. Youngblood, 116 F.

3d 1113, 1115 (5th Cir. 1997)). 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 IFP status if it finds that an appeal is being taken in good faith. Id. at

764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a). “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. Although jurists of reason would

not debate this Court’s resolution of petitioner’s case, the issues are not frivolous;

therefore, an appeal could be taken in good faith and petitioner may proceed in forma

pauperis on appeal. Id.

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ORDER

Based upon the foregoing, IT IS ORDERED that a certificate of appealability is

DENIED.

IT IS FURTHER ORDERED that the motion for leave to appeal in forma 

pauperis is GRANTED.

S/Arthur J. Tarnow 

Arthur J. Tarnow

United States District Judge

Dated: January 28, 2010

I hereby certify that a copy of the foregoing document was served upon parties/counsel

of record on January 28, 2010, by electronic and/or ordinary mail.

S/Catherine A. Pickles 

Judicial Secretary

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