UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION 

 

OSCAR PEREZ-GARCIA,

Petitioner,

v. Case No. 09-10839

MARY BERGHUIS,

Respondent.

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OPINION AND ORDER DECLINING TO ISSUE A CERTIFICATE OF

APPEALABILITY AND GRANTING PETITIONER’S APPLICATION TO PROCEED

WITHOUT 

PAYMENT OF FEES ON APPEAL

On September 30, 2010, the court issued a final judgment in favor of Respondent

Mary Berghuis. On October 28, 2010, Petitioner Oscar Perez-Garcia filed a notice of

appeal, an application to proceed in forma pauperis, and a motion for a certificate of

appealability. For the reasons below, the court will deny a certificate of appealability

and grant the application to proceed in forma pauperis on appeal.

A petitioner must receive a certificate of appealability in order to appeal the

denial of a habeas petition for relief from either a state or federal conviction. 28 U.S.C.

§§ 2253(c)(1)(A), (B). A certificate of appealability may be issued “only if the applicant

has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§2253(c)(2). A petitioner must show “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.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation omitted). In this case,
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the court concludes that reasonable jurists would not debate the court’s conclusion that

the petition does not present any claims sufficient to grant the petition for habeas

corpus. In its opinion and order of September 30, 2010, the court relied upon the

findings of fact of the State court in determining Petitioner’s constitutional rights had not

been violated. Giving due deference to the State court on issues of fact, no reasonable

jurist could have granted the petition. Furthermore, the court proceeded to consider

whether any alleged violations would have supported granting the petition. The court

determined that under applicable law, any error in admitting Petitioner’s confession

would have been harmless error because nearly all the information in the confession

was before the jury through admissible evidence. Therefore, the court will decline to

issue a certificate of appealability.

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). 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. Although the court declined to issue a

certificate of appealability, the court finds that Petitioner’s claims are not frivolous. The

court will therefore grant Petitioner’s application to proceed on appeal in forma pauperis. 

Accordingly,
S:\Cleland\JUDGE'S DESK\C1 ORDERS\09-10839.PEREZ-GARCIA.COA.IFP.nkt.wpd

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For the reasons stated above, IT IS ORDERED that Petitioner’s “Motion for

Certificate of Appealability” [Dkt. # 10] is DENIED.

IT IS FURTHER ORDERED that Petitioner’s “Application to Proceed In Forma

Pauperis on Appeal” [Dkt. # 9] is GRANTED.

 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: November 15, 2010

I hereby certify that a copy of the foregoing document was mailed to counsel of record on

this date, November 15, 2010, by electronic and/or ordinary mail.

 s/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522