Free Certificate of Appealability Denied - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Dora B. Schriro, et al. 13 Respondent-Appellee. 14 15 16 Pending is a referral from the Ninth Circuit for the purpose of determining whether the 17 Petitioner's appeal has been taken in good faith or is frivolous pursuant to 28 U.S.C. § 18 1915(a)(3). For the reasons set forth below, the Court finds that the appeal is frivolous and 19 not taken in good faith. 20 DISCUSSION 21 Under 28 U.S.C. § 1915(a), an appeal is in "good faith" so long as it seeks review of any 22 issue that is not "frivolous." Coppedge v. United States, 369 U.S. 438, 444-45 (1962); 23 24 25 term "frivolous" includes "not only the inarguable legal conclusion, but also the fanciful 26 factual allegation." Neitzke v. Williams, 490 U.S. 319, 325 (1989). 27 28
Case 2:03-cv-01510-ROS Document 36-2 Filed 10/18/2006 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

David Paul Stocks, Petitioner-Appellant, vs.

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CV 03 1510-PHX-ROS ORDER

Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977). An issue is frivolous if it has "no arguable basis in fact or law." O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990). The

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Petitioner was convicted of forgery and fraudulent schemes and artifices, sentenced to 15 years of prison, and ordered to pay $3,500 in restitution. [Doc. #12, Ex. E, pp. 143-144; Doc. #11, Ex. A, p. 156; Doc. #13, Ex. X, pp. 6-7; Doc. #13, Ex. G; Doc. #13, Ex. K].1 On October 20, 2005 the Court adopted in part and rejected in part Magistrate Judge Anderson's Report and Recommendation and dismissed Petitioner's Petition For Writ of Habeas Corpus, which was filed on August 6, 2003, pursuant to 28 U.S.C. § 2254. (Doc. #30). In doing so, the Court addressed each of Petitioner's objections regarding his ineffective assistance of counsel claims (Claims I through IV), Brady Claim (Claim V), and insufficient evidence claims (Claim VI and VII). With respect to the ineffective assistance of counsel claims, the Court found that Petitioner could not meet his burden under Strickland v. Washington, 466 U.S. 668 (1984). With respect to the Brady Claim, the Court found that the claim failed on the merits and agreed with Judge Anderson's conclusion that "even if the Petitioner could establish that the photograph existed and that it did not resemble Petitioner, 'that would not overcome the overwhelming evidence . . . .' that would warrant a violation of Brady." (Doc. #30, p. 16-17). With respect to Petitioner's claim that there was insufficient evidence of the "benefit" element of the fraudulent schemes count, the Court found that the record includes circumstantial evidence suggesting Petitioner benefitted from the fraudulent scheme and artifice, which is sufficient to support the jury's finding that Petitioner benefitted from cashing the checks and is permissible under A.R.S. § 13-502(2). (Id., p. 17). Petitioner also alleged insufficient evidence of a prior conviction; however, the Court found that under 28 U.S.C. § 2254(d), the state's decision was not contrary to nor did it involve an unreasonable application of Jackson v. Virginia, 443 U.S. 307, 319 (1979), which requires inquiry into "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Because this was

The Court incorporates the background as set forth in its October 20, 2005 Order Adopting in Part and Rejecting in Part the Report and Recommendation. (Doc. #30) -2Document 36-2 Filed 10/18/2006 Page 2 of 3

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Case 2:03-cv-01510-ROS

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sufficient proof under Ariz. R. Crim. P. 17.6, the Court found that the Arizona Court of Appeals' decision was neither contrary to nor rested on an unreasonable application of Jackson. For these reasons, an appeal from the court's dismissal order could have no arguable basis in fact or law. See Fed. R. Civ. P. 56(e). As a result, an appeal of this Court's Order would be frivolous.

Accordingly, IT IS CERTIFIED that Petitioner's appeal is not taken in good faith and is frivolous.

DATED this 17th day of October, 2006.

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