The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court are pro se petitioner's motions (1) for
leave to appeal in forma pauperis; and (2) for appointment of
counsel; (3) to reopen the time to file an appeal pursuant to
Federal Rule of Appellate Procedure 4(6)(a); and (4) to file
instanter a request for certificate of appealability. The Court
will address each in turn.
1. Motion to Proceed in Forma Pauperis
Petitioner has filed a motion to proceed in forma pauperis,
claiming that he is unable to pay the filing fees required for
appeal. The Court grants petitioner's motion for leave to appeal
in forma pauperis and, pursuant to 28 U.S.C. § 1915(b)(1),
assess a partial filing fee of $19.01. The trust fund officer at
petitioner's current place of incarceration is ordered to
collect, when funds exist, the partial filing fee from
petitioner's trust fund account and pay it directly to the clerk
of court. After payment of the initial partial filing fee, the
trust fund officer at the correctional facility where petitioner
is confined is authorized to collect monthly payments from his
trust fund account in the amount of 20% of the preceding month's
income credited to the account. Monthly payments collected from petitioner's trust fund account shall be forwarded
to the clerk of court each time the account balance exceeds $10
until the full $255 filing fee is paid. All payments shall be
sent to the Clerk, United States District Court, 219 S. Dearborn
St. Chicago, IL 60604, attn: Fiscal Dept., and shall clearly
identify petitioner's name and the case number assigned to this
2. Motion for Appointment of Counsel
Petitioner requests that the Court appoint counsel to represent
him on appeal. Petitioner's request is denied for lack of
jurisdiction; petitioner must direct his motion to the court of
appeals, not the district court.
3. Motion to Reopen the Time to File an Appeal
On August 13, 2004 petitioner filed a pro se, ex parte
letter, in which petitioner claimed that he never received notice
of this Court's March 23, 2004 order denying his petition for
habeas corpus. The Court construed petitioner's letter as a
motion to reopen the time to file an appeal pursuant to Federal
Rule of Appellate Procedure 4(6)(a), and ordered petitioner's
former counsel, and respondent, to respond within 14 days. On
September 13, 2004, petitioner's counsel filed a response
acknowledging that they did not personally notify petitioner of
this Court's judgment, but mistakenly assumed that he was aware
of its entry, and urged this Court to grant petitioner leave to
appeal. Respondent raises no objection. Federal Rule of Appellate
Procedure 4(a)(6) permits a district court to reopen the time to
file an appeal for a period of 14 days after the date when its
order to reopen is entered, if the following conditions are met:
(A) the motion is filed within 180 days after the
judgment or order is entered or within 7 days after
the moving party receives notice of the entry,
whichever is earlier;
(B) the court finds that the moving party was
entitled to notice of the entry of the judgment or order sought to be appealed but did not
receive the notice from the district court or any
party within 21 days after entry; and
(C) the court finds that no party would be
Petitioner's motion, filed August 13, 2004, states that he
learned of the Court's March 23, 2004 judgment on August 9, 2004.
Petitioner's request is therefore within 180 days after the
judgment was entered, and within 7 days after he received notice.
Next, based on petitioner's and his former counsel's
representations, the Court finds that petitioner was entitled to
notice of the entry of the judgment, but did not receive notice
within 21 days after its entry. Lastly, as no party has objected,
the Court finds that no party would be prejudiced by allowing
petitioner to exercise his right to appeal. Because all the
requirements of Rule 4(a)(6) have been met, petitioner's motion
to reopen the time to file an appeal is granted.
4. Motion to File Instanter a Request for Certificate of
On September 15, 2004, petitioner filed a motion for leave to
file instanter a request for a certificate of appealability.
Having reopened the time to file an appeal, the Court grants
petitioner's motion. "In a habeas corpus proceeding in which the
detention complained of arises from process issued by a state
court . . . the applicant cannot take an appeal unless a circuit
justice or a circuit or district judge issues a certificate of
appealability under 28 U.S.C. § 2253(c)." Fed.R. App. P. 22. A
certificate of appealability may issue only if the applicant has
made a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2). A substantial showing of the
denial of a constitutional right requires that the petitioner
"demonstrate that reasonable jurists could debate whether . . .
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) (internal quotation omitted).
Petitioner raised two claims in his petition for a writ of
habeas corpus: (1) that his counsel was constitutionally
ineffective; and (2) the trial judge was biased against him.
Petitioner seeks review of both claims. In his petition,
petitioner argued that his trial counsel wholly failed to subject
the State's case to meaningful adversarial testing. But, as the
Court explained, the record confirms that trial counsel
participated in all stages of the proceedings, raising
objections, moving for a mistrial, and pursuing a defense theory
during opening and closing arguments. Accordingly, as the trial
record contradicts petitioner's claim of per se
ineffectiveness, the Court concludes that reasonable jurists
could not debate whether the petition should have been resolved
in a different manner. Next, petitioner argued that he was denied
a fair trial because the trial judge was biased against him.
Petitioner raised a from of judicial bias known as "compensatory"
bias, and the Court found that he failed to produce sufficient
evidence of actual bias to support his claim. As the Court
explained, petitioner's evidence was bereft of detail, and mainly
comprised of hearsay and conjecture. Because petitioner failed to
produce evidence demonstrating that the trial judge was actually
bias against him, the Court concludes that reasonable jurists
could not debate whether the petition should have been resolved
in a different manner. Thus, petitioner's request for a
certificate of appealability is denied in its entirety.
Petitioner's motion for leave to appeal in forma pauperis is
GRANTED. Petitioner's motion for appointment of counsel is
DENIED. Petitioner's ex parte letter to the court, construed as
a motion to reopen the time to file an appeal, is GRANTED.
Petitioner's motion for leave to file instanter a request for certificate of ...