Petition for Writ of Certiorari — Ercil K. Rayford, Petitioner v. Blair Leibach, Warden

Case: 18-5239 Document: 19-2 Filed: 07/10/2018 Page: 1

No. 18-5239

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

ERCIL K. RAYFORD, aka Ercil K. Gates,

)

)

Jul 10, 2018

DEBORAH S. HUNT, Clerk

Petitioner-Appellant,

ORDER

V.

BLAIR LEIBACH, Warden,

Respondent-Appellee.

Ercil K. Rayford, a Tennessee prisoner proceeding pro Se, seeks to appeal the district

court's denial of his 28 U.S.C. § 2254 petition, and to that end, he has applied to this court for a

certificate of appealability. See Fed. R. App. P. 22(b)(1). He also moves to proceed in forma

pauperis on appeal.

In 1991, Rayford pleaded guilty to selling cocaine and received a sentence of 7.2 years of

probation to be served after serving forty weekends in custody. The trial court revoked his

probation in 1992 and ordered him to serve the remainder of his sentence in custody. That same

year, he pleaded guilty to especially aggravated robbery and eleven counts of aggravated

robbery. In all, he received a total effective sentence of 37.2 years in prison for his thirteen

convictions. At some time thereafter, Rayford was in custody in Arkansas, and in November

2012, Arkansas released him on parole. Then on December 10, 2013, Tennessee served him

with a parole violation warrant that had issued in 2006. Tennessee revoked Rayford's parole,

and on December 16, 2013, Rayford turned himself in to the authorities.

Case: 18-5239 Document: 19-2 Filed: 07/10/2018 Page: 2

No. 18-5239

-2Rayford then argued in two state habeas corpus petitions that his sentences had expired

and that he should be released. The state trial court denied both. Rayford did not appeal either

decision. Rayford also tried to file a petition for a writ of certiorari relating to his sentences, but

the clerk refused to file that petition because he had outstanding costs. The state court of appeals

dismissed his appeal of that decision on January 26, 2015. Rayford did not further appeal that

decision.

On March 14, 2016, Rayford filed his § 2254 petition, claiming that his sentences had

expired and that the parole violation warrant related solely to expired sentences. On the

warden's motion, the district court dismissed the petition as untimely and declined to issue a

certificate of appealability.

This court may issue a certificate of appealability "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

challenging a procedural ruling 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." Slack v.

McDaniel, 529 U.S. 473, 478 (2000). And if the claim faces a plain procedural bar correctly

invoked by the district court, "a reasonable jurist could not conclude either that the district

court erred in dismissing the petition or that the petitioner should be allowed to proceed further."

Id. at 484.

A state prisoner must file his petition within a one-year limitations period. 28 U.S.C.

§ 2244(d)(1). That period begins running on the latest of four dates:

the date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review;

the date on which the impediment to filing an application created by State

action in violation of the Constitution or laws of the United States is

removed, if the applicant was prevented from filing by such State action;

the date on which the constitutional right asserted was initially recognized

by the Supreme Court, if the right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral

review; or

Case: 18-5239 Document: 19-2 Filed: 07/10/2018 Page: 3

No. 18-5239

-3(D)

the date on which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence.

Id. But any time "during which a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending shall not be counted

toward any period of limitation." Id. § 2244(d)(2).

The district court did not err in deeming Rayford's petition untimely. As the district

court explained, the limitations period (1) began running when Rayford received the parole

violation warrant on December 10, 2013, because he knew the factual predicate for his claim at

that time; (2) began tolling 155 days later when Rayford filed his first state petition; (3) began

running again on February 25, 2015, after the time to appeal the rejection of his petition for a

writ of certiorari elapsed; and (4) ended on September 23, 2015. As a result, the district court

concluded that his § 2254 petition, filed on March 14, 2016, was untimely. It further observed

that Rayford was not entitled to equitable tolling because he did not show "(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way."

Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)). Nor did his federal civil rights lawsuit toll the limitations period, as it was not 'a

properly filed application for State post-conviction or other collateral review." 28 U.S.C.

§ 2244(d)(2). Reasonable jurists would not debate the district court's decision.

Accordingly, the application for a certificate of appealability is DENIED and the motion

to proceed in forma pauperis is DENIED as moot.

ENTERED BY ORDER OF THE COURT

Ad

2a~(

Deborah S. Hunt, Clerk

Case 2:16-cv-02355-SHM-tmp Document 67 Filed 04/25/18 Page 1 of 3 PagelD 656

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

ERCIL K. RAYFORD,

Petitioner,

No. 2: 16-cv-2355-SHM-tmp

vs.

GRADY PERRY,

Respondent.

ORDER DENYING AMENDED MOTION TO CONFORM TO EVIDENCE

ORDER DENYING MOTION TO RECOGNIZE

ORDER DENYING MOTION PURSUANT TO LOCAL RULES

AND

ORDER DENYING MOTION FOR RECONSIDERATION

On March 14, 2016, Petitioner Ercil K. Rayford, Tennessee Department of Correction

("TDOC") prisoner number 150772, an inmate at the Hardeman County Correctional Facility

("HCCF") in Whiteville, Tennessee, placed a pro se petition pursuant to 28 U.S.C. § 2254 in the

prison mail system. (Petition ("Pet."), ECF No. 1 at 15.) On April 1, 2016, Respondent was

ordered to file an answer, motion, or response. (Order, ECF No. 3.) On May 12, 2016,

Respondent filed the state court record (Record ("R."), ECF No. 22) and on May 13, 2016, filed

a supplemental state court record (Supplemental R., ECF No. 23) and a motion to dismiss the

petition as time barred, along with a memorandum in support. (Motion ("Mot.") to Dismiss,

ECF No. 24, Memorandum ("Mem.") in Support ("Supp.), ECF No. 25.)

On January 30, 2018, the Court entered an order granting Respondent's motion to dismiss

the petition as time barred, denying Petitioner's pending motions as moot, denying a certificate

of appealability, and certifying that any appeal by Petitioner would not be taken in good faith.

Case 2:16-cv-02355-SHM-tmp Document 67 Filed 04/25/18 Page 2 of 3 PagelD 657

(Order, ECF No. 53.) The judgment dismissing Rayford' s petition was entered on January 30,

2018. (Judgment, ECF No. 54.)

Pending before the 'Court are Petitioner Rayford's amended motion to conform to

evidence (Mot., ECF No. 56), motion to recognize exculpatory judicial prima facie evidence

(Mot., ECF No. 58), motion pursuant to the Local Rules of the United States District Court for

the Western District of Tennessee (Mot., ECF No. 59), and motion for reconsideration of the

order of dismissal. (Mot., ECF No. 61.) On March 9, 2018, Respondent filed his opposition to

the motion for reconsideration. (Opposition ("Opp'n), ECF No. 64.) On March 19, 2019,

Petitioner replied to Respondent's opposition. (Reply, ECF No. 66.)

The motion to conform (ECF No. 56), motion to recognize (ECF No. 58), and motion

pursuant to the Local Rules (ECF No. 59) articulate no basis for revisiting the order of dismissal

and are DENIED.

Petitioner Rayford contends in his reply to Respondent's opposition that he did not

receive a copy of the Court's order of dismissal until February 27, 2018. (Reply, ECF No. 66 at

2.) He contends that he placed his motion for reconsideration in the prison mail on February 27,

2018, the day he received the order of dismissal. (Id.) The Court will construe the motion for

reconsideration as a motion to alter or amend the judgment pursuant to Fed. Rule Civ. P. 59(e).

After listing four sentencing documents, Rayford asks the Court to reconsider its

determination, stating:

28 U.S.C.S. Rule 103, Ruling on Evidence, (a) error may not be predicated upon a

ruling which admits, or excludes. (2) In the case the ruling is one excluding

evidence, the substance of the evidence was made known to the Court by offer, or

was apparent from the context within which questions were asked. See also, 28

U.S.C.S., Rule 201, Judicial Notice of Adjudicative Facts, (a)(b)(c)(d)(e), the

Court shall take judicial notice if requested, and information is supplied. A party

2

Case 2:16-cv-02355-SHM-tmp Document 67 Filed 04/25/18 Page 3 of 3 PagelD 658

is entitled to be heard upon timely request. This motion is in compliance with 28

U.S.C.S., Rule 26.1(a)(1), request for admissions.

(Mot., ECF No. 61 at 3.) Respondent replies that the motion does not meet the criteria for relief

under Fed. R. Civ. P. 59(e). (Opp'n, ECF No. 64 at 5.)

A party should be afforded relief from a judgment pursuant to Fed. R. Civ. P. 59(e) under

only limited circumstances:

[R]econsideration of a judgment after its entry is an extraordinary remedy which

should be used sparingly. There are four basic grounds upon which a Rule 59(e)

motion may be granted. First, the movant may demonstrate that the motion is

necessary to correct manifest errors of law or fact upon which the judgment is

based. Second, the motion may be granted so that the moving party may present

newly discovered or previously unavailable evidence. Third, the motion will be

granted if necessary to prevent manifest injustice.

Fourth, a Rule 59(e) motion

may be justified by an intervening change in controlling law.

.

.

.

The Rule 59(e) motion may not be used to relitigate old matters, or present

evidence that could have been raised prior to the entry of judgment. Also,

amendment of the judgment will be denied if it would serve no useful purpose.

11 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (2d ed. 1995)

(footnotes omitted); see Nagalingam v. Wilson, Sowards, Bowling & Costanzo, No. 00-5453,

2001 WL 493392, at *2 (6th Cir. May 1, 2001).

Rayford' s motion does not satisfy the requirements of Rule 59(e). The motion to alter or

amend (ECF No. 61) presents no basis for revisiting the Court's determination and is DENIED.

Entered this 24 tday of April 2018.

si Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE

3

Case 2:16-cv-02355-SHM-tmp Document 53 Filed 01/30/18 Page 1 of 8 PagelD 583

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

ERCIL K. RAYFORD,

Petitioner,

No. 2:16-cv-2355-SHM-tmp

vs.

BLAIR LEIBACH,

Respondent.

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS

ORDER OF DISMISSAL

ORDER DENYING PETITIONER'S REMAINING MOTIONS AS MOOT

ORDER DENYING CERTIFICATE OF APPEALABILITY

ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH

AND

ORDER DENYING LEAVE TO PROCEED IN FORMA PA UPERIS ON APPEAL

On March 14, 2016, Petitioner Ercil K. Rayford, Tennessee Department of Correction

("TDOC") prisoner number 150772, an inmate at the Hardeman County Correctional Facility

("HCCF") in Whiteville, Tennessee, placed a pro se petition pursuant to 28 U.S.C. § 2254 in the

prison mail system. (Petition ("Pet."), ECF No. 1.) On May 13, 2016, Respondent filed a

motion to dismiss the petition as time barred. (Motion ("Mot.") to Dismiss, ECF No. 24.)

On August 4, 2017, Petitioner Rayford filed motions for a pretrial order and to compel.

(ECF No. 43, ECF No. 44.) On August 10, 2017, Petitioner filed a motion seeking a jury trial.

(ECF No. 46.) On January 2, 2018, Rayford filed a motion seeking the appointment of counsel.

(ECF No. 49.) On January 4, 2018, Petitioner filed a motion "to conform to evidence." (ECF

Case 2:16-cv-02355-SHM-tmp Document 53 Filed 01/30/18 Page 2 of 8 PagelD 584

No. 50.) On January 17, 2018, Rayford filed motions to expedite the pretrial hearing and to

compel. (ECF No. 51, ECF No. 52.)

Before the Court are Respondent's Motion to Dismiss the Petition as untimely (Mot. to

Dismiss, ECF No. 24) and Petitioner's seven motions. (ECF Nos. 43-44, 46, 49, 50-52.) For the

reasons stated below, the Motion to Dismiss is GRANTED and the Petition is DISMISSED.

Because the petition is dismissed, Petitioner's motions are DENIED as MOOT.

I.

STATE COURT PROCEDURAL HISTORY

On May 1, 1991, Petitioner pled guilty to the sale of cocaine in Shelby County Criminal

Court No. 91-02869 and was sentenced to 7.2 years, to be served on probation after serving forty

weekends in custody. (State Court Record ("R."), Judgment, ECF No. 22-1 at Page ID 74.) On

March 13, 1992, the trial court revoked Petitioner's probation and ordered him to serve the

sentence in custody. (R., Order, ECF No. 22-1 at Page ID 97.)

On October 6, 1992, Petitioner pled guilty to especially aggravated robbery in Shelby

County Criminal Court No. 92-07649. (R., Judgment, ECF No. 22-2 at PagelD 106.) The same

day Petitioner pled guilty to eleven counts of aggravated robbery in Shelby County Criminal

Court Nos. .92-07650, 92-07651, 92-07652, 92-07653, 92-07654, 92-07655, 92-07656, 9207657, 92-07662, 92-07663, and 92-07664' and was sentenced to ten years in prison on each, to

be served concurrently to each other, but consecutively to the sentences in Case Nos. 91-02869

and 92-07649. (R., Judgments, ECF No. 22-2 at PagelD 130, 136, 142, 148; R. Judgments, ECF

No. 22-3 at PagelD 155, 162, 173; R., Judgments, ECF No. 22-4 at Page ID 181, 186, 194; R.,

'The judgment form for Case No. 92-07664 corresponds to an indictment numbered 9206864. (R., Indictment, ECF No. 22-4 at PagelD 178, Judgment, Id. at PagelD 181.) Petitioner

and Respondent refer to the case as it is numbered on the judgment form and the Court will do

the same.

2

Case 2:16-cv-02355-SHM-tmp Document 53 Filed 01/30/18 Page 3 of 8 PagelD 585

Judgment, ECF No. 23-1 at PagelD 431.) Rayford's total effective sentence on all thirteen

convictions was 37.2 years.

Petitioner was released on parole at an unspecified time. (Pet., ECF No. 1.) On

December 10, 2013, Petitioner was served with a parole violation warrant related to the Shelby

County Criminal Court judgments, and his parole was revoked. (Pet., ECF No. 1 at PagelD 8;

R., State Habeas Pet., ECF No. 22-6 at PagelD 318.)

In 2014, Petitioner challenged the revocation of his parole and his continued detention on

the state-court judgments in two separate state petitions for habeas corpus relief in the Hickman

County Circuit Court. (R., State Habeas Pet., No. 14-cv-29, filed May 15, 2014, ECF No. 22-5

at PagelD 196, State Habeas Pet., No. 14-cv-45, filed on August 14, 2014, ECF No. 22-6 at

PagelD 317.) Case No. 14-cv-29 was dismissed on August 5, 2014. (R., Order, ECF No. 22-5 at

PagelD 315). Case No. 14-cv-45 was dismissed on September 16, 2014. (R., Order, ECF No.

22-6 at PagelD 412). Petitioner did not file an appeal in either case.

Also in 2014, Petitioner attempted to file a petition for writ of certiorari in the Davidson

County Chancery Court challenging the Tennessee Department of Correction's sentencing

calculations. The court clerk refused to file the petition under Tenn. Code Ann. § 41-21-812(a)

because Petitioner had failed to pay previous court costs. (R., Order, ECF No. 22-7 at PagelD

423.) Rayford appealed. On January 26, 2015, the Tennessee Court of Appeals dismissed the

appeal because his petition did not allege the harm contemplated by Tenn. Code Ann. § 41-21812(b) that would exempt Rayford from the application of Tenn. Code Ann. § 41-21-812(a).

Petitioner did not seek permission to appeal.

3

Case 2:16-cv-02355-SHM-tmp Document 53 Filed 01/30/18 Page 4 of 8 PagelD 586

PETITIONER'S FEDERAL HABEAS CLAIMS

In this § 2254 petition, Petitioner contends that the State of Tennessee has miscalculated

his release eligibility date, that his Tennessee sentences have expired, and that he is illegally

restrained. (Pet., ECF No. 1 at PagelD 6-14.) Rayford seeks immediate release.

(Id.)

Respondent contends that the petition is time barred. (Mot. to Dismiss, ECF No. 24 at PagelD

433.)

ANALYSIS

The statutory authority for federal courts to issue habeas corpus relief for persons in state

custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 ("AEDPA"). A federal court may grant habeas relief to a state prisoner

"only on the ground that he is in custody in violation of the Constitution or laws or treaties of the

United States." 28 U.S.C. § 2254(a).

Twenty-eight U.S.C. § 2244(d) provides:

(1)

A 1-year period of limitation shall apply to an application for a writ of

habeas corpus by a person Iin custody pursuant to the judgment of a State

court. The limitation period shall begin to run from the latest ofthe date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

the date on which the impediment to filing an application

created by State action in violation of the Constitution or

laws of the United States is removed, if the applicant was

prevented from filing by such State action;

the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has

been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; and

4

Case 2:16-cv-02355-SHM-tmp Document 53 Filed 01/30/18 Page 5 of 8 PagelD 587

(D)

(2)

the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment

or claim is pending shall not be counted toward any period of limitation

under this subsection.

28 U.S.C. § 2244(d).

Petitioner's claim arose on December 10, 2013, when he was served with the parole

violation warrant. (Pet., ECF No. 1 at PagelD 8, R., State Habeas Pet., ECF No. 22-6 at PagelD

318.) The running of the § 2254 limitations period began on December 10, 2013.

The limitations period was tolled, pursuant to 28 U.S.C. § 2244(d)(2), when Rayford filed

his first state habeas petition on May 15, 2014. (R., State Habeas Pet., ECF No. 22-5 at PagelD

196.) By that time, one hundred fifty-five (155) days of the one-year limitations period had

elapsed. Petitioner's state habeas proceedings concluded when the state court denied Petitioner's

second petition on September 16, 2014. (R., Order, ECF No. 22-6 at PagelD 412.) Petitioner

did not appeal. The state court's order became final on October 16, 2014.

If the Court considers Rayford's petition for writ of certiorari filed in 2014 to be a

properly filed application for State post-conviction or other collateral review, his extraordinary

appeal was dismissed by the Tennessee Court of Appeals on January 26, 2015. (R., Order, ECF

No. 22-7 at PagelD 423.) Petitioner did not seek permission to appeal. Rule 10 of the Tennessee

Rules of Appellate Procedure provides that "[a]n appeal from the denial of an application for

extraordinary appeal by an intermediate appellate court is sought by filing an application in the

Supreme Court as provided for in this rule within 30 days of the filing date of the intermediate

appellate court's order." The thirtieth day fell on February 25, 2015. The running of the

5

Case 2:16-cv-02355-SHM-tmp Document 53 Filed 01/30/18 Page 6 of 8 PagelD 588

limitations period recommenced at that time and expired on September 23, 2015. Rayford did

not file this habeas petition until March 14, 2016. It is time barred.

"[T]he doctrine of equitable tolling allows federal courts to toll a statute of limitations

when a litigant's failure to meet a legally mandated deadline unavoidably arose from

circumstances beyond that litigant's control." Keenan v. Bagley, 400 F.3d 417, 421 (6th Cir.

2005) (internal quotation marks omitted). The § 2254 limitations period is subject to equitable

tolling. Holland v. Florida, 560 U.S. 631, 645-49 (2010). "[T]he doctrine of equitable tolling is

used sparingly by the federal courts." Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010);

see also Vroman, 346 F.3d at 604 (same); Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003)

(same). "The party seeking equitable tolling bears the burden of proving he is entitled to it."

Robertson, 624 F.3d at 784. A habeas petitioner is entitled to equitable tolling "only if he shows

'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance

stood in his way' and prevented timely filing." Holland, 560 U.S. at 649 (quoting Pace, 544 U.S.

at 418).

Rayford responded to the motion to dismiss, arguing that Case No. 14-cv-0122 was not

final when he filed this habeas petition. (Reply, ECF No. 30-8 at PagelD 500.) Rayford v.

Johnson, No. 14-cv-0122-Haynes/Brown (M.D. Tenn. July 5, 2016), a § 1983 lawsuit, provides

no basis for tolling the statute of limitations. That lawsuit was not a properly filed application

for State post-conviction or other collateral review.

Ignorance of the law does not toll the limitations period. Thomas v. Romanowski, 362 F.

App'x 452, 455 (6th Cir. 2010); Harrison v. I.MS., 56 F. App'x 682, 685-86 (6th Cir. 2003)

(declining to apply equitable tolling where prisoner was ignorant of the filing deadline because,

through his other contacts with the court, he "learned that his other documents he filed with the

Case 2:16-cv-02355-SHM-tmp Document 53 Filed 01/30/18 Page 7 of 8 PagelD 589

court had corresponding filing deadlines" and, therefore, he "knew or should have known that his

application for a writ of habeas corpus also had a filing deadline"); Miller v. Cason, 49 F. App'x

495, 497 (6th Cir. 2002) ("Miller's lack of knowledge of the law does not excuse his failure to

timely file a habeas corpus petition."); Brown v. United States, 20 F. App'x 373, 374 (6th Cir.

2001) ("Ignorance of the limitations period does not toll the limitations period."). There is no

basis for finding that the one-year statute of limitations should be tolled.

Respondent's motion to dismiss the petition as time barred is GRANTED. (Mot., ECF

No. 24.) The petition is DISMISSED WITH PREJUDICE. Judgment shall be entered for

Respondent. Petitioner's motions are DENIED as MOOT.

IV.

APPELLATE ISSUES

There is no absolute entitlement to appeal a district court's denial of a § 2254 petition.

Miller-El v. Cockrell, 537 U.S. 322, 335 (2003); Bradley v. Birkett, 156 F. App'x 771, 772 (6th

Cir. 2005). The Court must issue or deny a certificate of appealability ("COA") when it enters a

final order adverse to a § 2254 petitioner. Rule 11, Rules Governing Section 2254 Cases in the

United States District Courts. A petitioner may not take an appeal unless a circuit or district

judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1).

A COA may issue only if the petitioner has made a substantial showing of the denial of a

constitutional right, and the COA must indicate the specific issue or issues that satisfy the

required showing. 28 U.S.C. §§ 2253(c)(2) & 3. A "substantial showing" is made when the

petitioner demonstrates 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." Miller-El, 537 U.S. at 336

(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)); Henley. v. Bell, 308 F. App'x 989, 990 (6th

7

Case 2:16-cv-02355-SHM-tmp Document 53 Filed 01/30/18 Page 8 of 8 PagelD 590

Cir. 2009) (per curiam) (same). A COA does not require a showing that the appeal will succeed.

Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App'x 809, 814-15 (6th Cir. 2011) (same).

Courts should not issue a COA as a matter of course. Bradley, 156 F. App'x at 773 (quoting

Slack, 5 3 7 U. S. at 3 3 7).

In this case, there can be no question that the claims in this petition are barred by the

statute of limitations. Because any appeal by Petitioner on the issues raised in this petition does

not deserve attention, the Court DENIES a certificate of appealability.

For the reasons the Court denies a certificate of appealability, the Court determines that

any appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant to Fed. R.

App. P. 24(a), that any appeal in this matter would not be taken in good faith, and leave to appeal

in forma pauperis is DENIED.2

Entered this 30th day of January, 2018.

si Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE

21f Petitioner files a notice of appeal, he must pay the full $505 appellate filing fee or file

a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of

Appeals within thirty (30) days of the date of entry of this order. See Fed. R. App. P. 24(a)(5).

8