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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT ANTHONY BURGESS,

Petitioner, CASE NO. 2:09-CV-10521

 HONORABLE JOHN CORBETT O'MEARA

v. UNITED STATES DISTRICT JUDGE

DAVID BERGH, 

Respondent.

_____________________________/

OPINION AND ORDER GRANTING PETITIONER'S MOTION TO PROCEED IN

FORMA PAUPERIS ON APPEAL [DKT. #13] AND DENYING PETITIONER'S

MOTION FOR A CERTIFICATE OF APPEALABILITY [DKT. # 14]

Robert Anthony Burgess, a state inmate, filed this habeas case under 28 U.S.C. § 2254. On

June 10, 2011, the Court entered an Opinion and Order denying the petition and denying a certificate

of appealability. Petitioner filed a notice of appeal on June 23, 2011. Presently before the Court are

Petitioner's motion to proceed in forma pauperis on appeal and his motion for a certificate of

appealability. 

Federal Rule of Appellate Procedure 3(e) provides that the appellant must pay all required

fees at the time a notice of appeal is filed with the district court. Under Sixth Circuit Internal

Operating Procedure 103(1), the docketing fee for a case on appeal is $ 450.00. In addition, under

28 U.S.C. § 1917, a $ 5.00 filing fee must be paid to the district court. A prisoner who is unable to

pay the required filing fees may seek leave to appeal in a § 2254 action pursuant to Rule 24(a) of

the Federal Rules of Appellate Procedure. Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

Petitioner has complied with Rule 24(a), which requires him to file a motion for leave to proceed

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in forma pauperis and an affidavit showing his inability to pay the required fees. The documents

show that Petitioner is unable to pay the filing and docket fees required for an appeal. 

Although the Court has denied a certificate of appealability to Petitioner, the standard for

granting an application for leave to proceed in forma pauperis 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 in forma pauperis 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

the court's resolution of Petitioner's claims, the issues are not frivolous; therefore, an appeal could

be taken in good faith and petitioner may proceed in forma pauperis on appeal. Id.

In light of his indigence and the fact that he is not bringing his appeal in bad faith, Petitioner

may proceed in forma pauperis on appeal without pre-paying or giving security for fees and costs.

FED. R. APP. P. 24(a)(2). Therefore, Petitioner is not required to pay the $ 455.00 fee for filing an

appeal. See Kincade, 117 F.3d at 951 (holding that 28 U.S.C. § 1915(b) provides that the fee

provisions of the Prison Litigation Reform Act of 1995 do not apply to an appeal from a decision

on an application for habeas relief.)

Petitioner has also filed a motion for a certificate of appealability (COA). The Court has

already declined to issue a COA because reasonable jurists could not "debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner" or that the issues

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presented were "adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529

U.S. 473, 484 (2000) (citation omitted). Petitioner has not offered any argument to undermine the

Court's decision to deny him a COA. 

IT IS ORDERED that Petitioner 's motion for leave to proceed in forma pauperis on appeal

(dkt. #13) is GRANTED.

IT IS FURTHER ORDERED that Petitioner's motion for a certificate of appealability (dkt.

#14) is DENIED.

s/John Corbett O’Meara 

United States District Judge

Date: August 12, 2011

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

on this date, August 12, 2011, using the ECF system and upon Petitioner at Thumb Correctional

Facility, 3225 John Conley Drive, Lapeer, Michigan 48446 by first-class U.S. mail. 

s/William Barkholz 

Case Manager

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