UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

ROBERT E. MURPHY, ) ) Petitioner, ) ) v. ) No. 1:19-cv-04602-JPH-TAB ) DUSHAN ZATECKY, ) ) Respondent. )

ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY AND DENYING MOTION FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS Robert E. Murphy filed a petition for writ of habeas corpus challenging his 2009 Indiana state court convictions for criminal confinement, robbery, and criminal deviate conduct. This Court denied the petition, concluding that Mr. Murphy's speedy trial claim is procedurally defaulted and that his ineffective assistance of counsel claim is barred by

(d). Mr. Murphy has now moved for a certificate of appealability and for leave to proceed on appeal in forma pauperis. I. Certificate of Appealability "A state prisoner whose petition for a writ of habeas corpus is denied by a federal district court does not enjoy an absolute right to appeal." Buck v. Davis,

(2017). Instead, the prisoner must first obtain a certificate of appealability. See

(c)(1). Rule 11(a) of the Rules Governing Section 2254 Proceedings in the United States District Courts requires the district court to "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."

(c)(2). Where, as here, a petitioner's claim is resolved on procedural grounds, a certificate of appealability should issue only if reasonable jurists could disagree about the merits of the underlying constitutional claim and about whether the procedural ruling was correct. Flores- Ramirez v. Foster,

(7th Cir. 2016) (citing Slack v. McDaniel,

(2000)). Because reasonable jurists would agree that Mr. Murphy's speedy trial claim is procedurally defaulted and that his ineffective assistance of counsel claim is barred by

(d) or otherwise without merit, his motion for certificate of appealability, dkt. [23], is DENIED. II. Leave to Proceed on Appeal Jn Forma Pauperis "An appeal may not be taken in forma pauperis if the trial court certifies that the appeal is not taken in good faith."

(a)(3). "Good faith" within the meaning of § 1915 is judged by an objective, nota subjective, standard. See Thomas v. Zatecky,

(7th Cir. 2013) ("bad faith" is understood to mean objective frivolousness). Mr. Murphy cannot reasonably argue that the denial of his habeas petition was erroneous. In pursuing an appeal, therefore, he "is acting in bad faith . . . [because] to sue in bad faith means merely to sue on the basis of a frivolous claim, which is to say a claim that no reasonable person could suppose to have any merit.” Lee v. Clinton,

(7th Cir. 2000). His motion for leave to proceed on appeal in forma pauperis, dkt. [27], is DENIED. SO ORDERED. Date: 10/27/2020 Slam ruck anor James Patrick Hanlon United States District Judge Southern District of Indiana

Distribution:

ROBERT E. MURPHY 117550 PENDLETON - CF PENDLETON CORRECTIONAL FACILITY Electronic Service Participant – Court Only

Caroline Templeton INDIANA ATTORNEY GENERAL [email protected]